I letter d.o.f.no. 500/44/2011 ftd i dated 22 3 2011
Circular No. D.O.F.NO. 500/44/2011-FTD-I was issued by the Central Board of Direct Taxes on 22 March 2011. Its subject is I letter d.o.f.no. 500/44/2011 ftd i dated 22 3 2011.
This one is about a tax treaty. India’s treaties enter Indian law by notification under section 90; where the instrument below is that notification, its date decides from when the treaty may be applied, and where it is a circular, it is the Board telling its officers how it reads the treaty — which is not the same thing.
Sets out why the names of Indians holding accounts with a Liechtenstein bank, received from the German Government, cannot be made public. The confidentiality obligation is in paragraph 1 of Article 26 of the India-Germany agreement, under which information received is to be treated as secret in the same manner as information obtained under domestic law and disclosed only to persons or authorities involved in the assessment, collection, enforcement, prosecution or determination of appeals in respect of the taxes covered, who may use it only for those purposes, though they may disclose it in public court proceedings or judicial decisions. The letter reads 'public court proceedings' as meaning proceedings arising out of the assessment or prosecution of the taxpayer, not a proceeding such as the public interest litigation then before the Supreme Court, and notes that the German authorities emphasised when handing over the information that it was subject to the confidentiality provisions and usable only for the tax purposes specified. It records that show-cause notices for prosecution have been issued and that once prosecution is launched the names would become public.
It replies to a letter of 19 January 2011 to the Prime Minister contending that there was no bilateral confidentiality provision, that the Law Officers had misled the Supreme Court, and that the names should be made public and the holders prosecuted.
LETTER
INCOME-TAX
Reply letter of Shri S.S. Palanimanickam Minister of State for Finance to Shri Subramaniam Swamy, President of Janata Party regarding disclosure of names of Indians having bank accounts in Liechtenstein
LETTER D.O.F.NO. 500/44/2011-FTD-I, DATED 22-3-2011
A reference is invited to your letter, dated 19th January, 2011 addressed to Prime Minister of India regarding disclosure of names of Indians having illegal accounts in Liechtenstein, which were obtained from German Government. In your letter you have stated that a plea has been taken by the Government before the Supreme Court in the Public Interest Litigation that the names of Indians having bank accounts in LGT bank of Liechtenstein received from Germany cannot be made public in view of the confidentiality provision of the DTAA between India and Germany. You have also mentioned that there is no bilateral agreement between India and Germany which contain confidentiality provision and that Law Officers of Government have misled the Supreme Court. In view of the above, a plea was made to make the names public and prosecute them.
2. In this regard, I am constrained to disagree with you on the above facts. It may be noted that the confidentiality provision is contained in paragraph 1 of Article 26 of India-Germany DTAA which reads as under:
"The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by this Agreement. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions."
The words "public court proceedings" referred to in the last line of paragraph 1 of Article 26 of India- Germany DTAA refer to court proceeding arising out of assessment or prosecution of the taxpayer and not the proceeding similar to one currently before the Supreme Court. Further the German authorities, while actually handing over the information, have emphasized that the information is subject to the confidentiality provisions of the DTAA and may be used only for the tax purposes specified therein.
3. From the above, it is clear that information received under the DTAA cannot be made public and can be used only for tax purposes. This clearly shows that the plea taken by the Solicitor General of India on behalf of Government of India before the Supreme Court is in accordance with law.
4. So far as prosecuting the people whose names have appeared in the list, it is submitted that the show-cause notices for prosecutions have been issued. Once prosecution is launched, the names would become public.
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When treaty-sourced information is used in an assessment or prosecution and the question is what use of it the exchange of information article permits.
Source: the Income Tax Department’s own published text — its page for this instrument.