The Supreme Court upheld the Bombay High Court’s verdict that asked builders to pay 5% value added tax -VAT for under construction flats sold during 20 June 2006 to 31 March 2010.
The Supreme Court had ruled that value added tax (VAT) cannot be imposed on buyers and builders, developers have to pay the tax (5%) for under construction flats sold during 20 June 2006 to 31 March 2010. The apex court also clarified that VAT is not payable, if a fully constructed flat is sold to the buyer and builders will be liable to pay tax only on cost of construction.
However, there are chances that builder will recover these charges from buyers by adding it in costs and it will only create litigations between builders and buyers.
Earlier, citing a circular issued by the Maharashtra Sales Tax Department, builders were asking flat buyers to pay the additional money before 31 October 2012 for their homes bought between 2006 and 2010. However, several consumer organizations like the Grahak Panchayat had maintained that it is the builder, developer who will have to pay VAT and not flat buyers.
The Supreme Court order will have a direct impact on realtors from Karnataka, Maharashtra and Uttar Pradesh. The order also empowers all state government to issue circulars to levy VAT. Maharashtra government had issued a circular in 2006, and subsequently in 2007 levied a VAT of 5% on sale of flats.
The Supreme Court had clubbed 14 appeals from Karnataka and 12 from Maharashtra. Verdict means that developers in states such as Maharashtra, Uttar Pradesh and Karnataka, where VAT has been levied on such transactions will have to pay the charges. Builders were trying to recover this amount from the buyers.
Although, the state governments and even High Court has said that developers have to pay VAT, several were reluctant to pay the tax.
Advocate General for Maharashtra clearly stated, “Implementation of Rule 58(1-A ) of Maharashtra VAT shall not result in double taxation and in any case all claims of alleged double taxation will be determined in the process of assessment of each individual case." As builders have already paid taxes for raw materials and this may create issues of double taxation. However MVAT rule 58 (1-A) provides deduction of expenses on labour and service charges for the execution of the work related to the goods that has already been transferred.
Earlier, builders’ association CREDAI had approached the apex court after the Bombay High Court rejected their plea to impose only 1% VAT. In 2006, the state government imposed a VAT of 5% on constructions made between 2006 and 2010. The move resulted in an additional tax liability on flats, shops and bungalows sold by developers between 20 June 2006, and 31 March 2010.
To know more about VAT read, VAT on sale of under-construction flats in Maharashtra: All you need to know
The procedure set out by NBE as well as the RTI Act coexists and therefore, it is for the citizen to determine which route she would prefer for obtaining the information, the CIC ruled. This is the 179th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application
The Central Information Commission (CIC), while allowing a complaint, directed the Public Information Officer (PIO) and deputy director of National Board of Examinations (NBE) under the Ministry of Health and Family Welfare, to provide the information sought by the appellant under the Right to Information (RTI) Act.
While giving the judgement on 27 December 2011, Shailesh Gandhi, the then Central Information Commissioner said, "The Bench would like to highlight that just as the procedure put in place by NBE is not abrogated, the RTI Act passed by the Parliament also cannot be suspended and therefore, it is for the citizen to determine which route she would prefer for obtaining the information."
Gurgaon (Haryana) resident Saurabh Yadav, on 8 April 2011, sought from the Public Information Officer (PIO) information regarding question and answer papers of NBE. Here is the information he sought and the reply provided by the PIO under the RTI Act...
1. (i) Attested photocopy of original question paper, Part I Series of FMG Exam held on 27/03/2011.
PIO's Reply—As per the policy of National Board of Examinations (NBE), question paper/answer key of multiple choice questions (MCQ) based exams cannot be provided.
(ii) Attested photocopy of original question paper, Part II Series of FMG Exam held on 27/03/2011.
PIO's Reply—As per the policy of NBE, question paper/answer key of MCQ based exams cannot be provided.
2. (i) Attested photocopy of answer key of question paper, Part I Series 'B' of FMG Exam held on 27/03/2011.
PIO's Reply—As per the policy of NBE, question paper/answer key of MCQ based exams cannot be provided.
(ii) Attested photocopy of answer key of question paper, Part II Series 'B' of FMG Exam held on 27/03/2011.
PIO's Reply—As per the policy of NBE, question paper/answer key of MCQ based exam can not be provided.
3. (i) Attested photocopy of original answer sheet of question paper, Part I, Series 'B' attempted by Saurabh Yadav Roll No. 11143392 in FMG Exam held on 27/03/2011.
PIO's Reply—Scheme/format of application is available at NBE website- natboard.edu.in. Copy also enclosed.
(ii) Attested photocopy of original answer sheet of question paper, Part II, Series 'B' attempted by Saurabh Yadav Roll No. 11143392 in FMG Exam held on 27/03/2011.
PIO's Reply—Scheme/format of application is available at NBE website- . Copy also enclosed.
Not satisfied with the PIO's information, Yadav, the appellant filed his first appeal.
In his order, the First Appellate Authority (FAA) observed, "NBE has spent years to frame the questions that now form part of its question bank. The question bank is a very valuable resource for the NBE. NBE has got these questions prepared by making payments to the experts and NBE holds its intellectual property rights over these questions. The question bank is maintained to screen Indian nationals with foreign medical qualifications and assess the minimum standard of Medical education at the MBBS level in India, the same are scarce and in case these questions are shared with the third party, candidate and institutions, the same will have a negative effect on the examination system. Therefore, questions of MCQ based examinations cannot be shown/ divulged".
In relation to query 3, the FAA noted: "Scheme/ format of application is available at NBE web-site natboard.edu.in. Copy of the same is also enclosed".
Yadav, still not satisfied with the FAA's order, approached the CIC with his second appeal.
During the hearing on 14 December 2011, the PIO stated that he had objections in providing the question papers (as sought in query 1) as the question bank was limited and the design of the examination had been dictated by the Supreme Court of India in Sanjiv Gupta vs Union of India (2005)1SCC45. He submitted that if two or three question papers were revealed, the Respondent-public authority would not have any further questions which it could ask in the examination. The PIO also argued that a larger public interest would be served by not disclosing the question papers and answer keys. As regards query 3, he stated that he was willing to provide the answer sheets so long as the Appellant applied for them in accordance with the procedure set out by NBE.
On the other hand, Yadav, the appellant, argued that he required the question papers along with the answer keys to determine whether he was properly marked or not.
The Bench reserved its order.
During the hearing on 27 December 2011, Mr Gandhi, the then CIC, reiterated that the right to information is a fundamental right of the citizens of India. It is premised on disclosure being the norm, and refusal, the exception. Further, it is legally established that information requested for under the RTI Act may be exempt from disclosure in accordance with Sections 8 and 9 only, and no other exemptions can be claimed while rejecting a demand for disclosure. Moreover, under Section 6(2) of the RTI Act, an applicant is not required to give any reason for requesting the information.
The PIO described the background to the Foreign Medical Graduates Examination (FMGE) Screening Test. He also referred to certain orders of the Supreme Court including in (2002) (3SCC696 dated 08/03/2002) wherein directions were issued in respect of Foreign Medical Graduates who had applied for registration with the Medical Council of India (MCI). Further, in Sanjeev Gupta vs Union of India (2005)(1SCC45) it was observed that MCI was the best judge to decide whether a person was duly qualified to practice medicine in India. The Court noted that as regards the FMGE screening test, MCI had concluded that post-disintegration of USSR, due to serious aberrations in the recruitment system and admission of students in institutions located in Russia, there was a decline in the standard of medical education in these countries. Consequently, keeping in view the larger public interest and need to main a certain standard for students passing from these institutions, MCI decided that such students would be required to do an internship for a year as well as qualify for the said screening test before they were given permanent registration in India.
Mr Gandhi said, "The above mentioned rulings lay down the importance of the screening test and the objectives behind it. This Bench however, is of the view that they deal with a different subject-matter and may not be relevant to determine whether the denial of information in the present matter was justified under the RTI Act and the specific exemptions contained therein."
The PIO has argued that if the information sought is revealed, then it is liable to be grossly abused and comprise the confidentiality of the examination process. The syllabus of the screening test was judicially approved and fixed by the Supreme Court. Further, the NBE was required to frame the questions for the Screening Test within the parameters fixed and only a limited number of permutations/combinations were possible limiting the number of questions. The PIO also submitted that the FMG Exam was conducted in public interest to screen the academic competence of professionals to whom the lives of prospective patients would be entrusted.
The Bench said, "It is pertinent to mention that the PIO has not cited any exemption in Sections 8 or 9 of the RTI Act to deny the information. This is clearly contrary to the legal position well-established in this regard. Moreover, the Bench is of the considered opinion that the arguments raised by the PIO do not attract any of the exemptions under Section 8 of the RTI Act. In the functioning of the government and other like authorities including the NBE public authority, there may be various instances where certain documents, records, procedures, etc have been treated as confidential and at times, explicitly so provided. However, with the advent of the RTI Act, such information has to be provided subject only to the exemptions of the RTI Act viz Sections 8 and 9. It may not be out of place to mention that where a test is conducted to screen the academic competence of professionals who are to be given permanent registration as medical practitioners, the questions set in such a test should necessarily be of a high standard testing the knowledge and competence of such persons, and not be mere repetitions from a limited question bank. The Bench is unable to agree with the PIO's arguments."
"At this juncture," Mr Gandhi said, "it must be noted that Section 9 of the RTI Act may be claimed as an exemption from disclosure of information where such disclosure would infringe a copyright subsisting in a person other than the State. Given that the FAA has already observed inter alia that the information sought is the intellectual property of NBE, Section 9 of the RTI Act is not applicable to the instant matter."
As regards query 3, the PIO specifically submitted that he was willing to provide the answer sheets so long as the appellant applied for them in accordance with the procedure set out by NBE.
Mr Gandhi said, "Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Given the above, two scenarios may be envisaged:
1. An earlier law/ rule whose provisions pertain to furnishing of information and is consistent with the RTI Act: Since there is no inconsistency between the law/ rule and the provisions of the RTI Act, the citizen is at liberty to choose whether she will seek information in accordance with the said law/ rule or under the RTI Act. If the PIO has received a request for information under the RTI Act, the information shall be provided to the citizen as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only; and
2. An earlier law/ rule whose provisions pertain to furnishing of information but is inconsistent with the RTI Act: Where there is inconsistency between the law/ rule and the RTI Act in terms of access to information, then Section 22 of the RTI Act shall override the said law/ rule and the PIO would be required to furnish the information as per the RTI Act only."
"The procedure set out by NBE as well as the RTI Act coexists and therefore, it is for the citizen to determine which route she would prefer for obtaining the information. The right to information available to the citizens under the RTI Act cannot be denied where such citizen chooses to exercise such right, as has been done by the PIO in the instant case," Mr Gandhi said.
He said, "If the PIO has received a request for information under the RTI Act, the information shall be provided to the applicant as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only. In view of the same, the Bench rejects the PIO's contention."
While allowing the appeal the Bench directed the PIO to provide the information on queries 1, 2 and 3 to Yadav, the appellant, before 20 January 2012.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2011/002724/16593
Appeal No. CIC/SG/A/2011/002724
Appellant : Saurabh Yadav,
Respondent : Dinesh Chand,
Public Information Officer &
National Board of Examinations,
M/o Health and Family Welfare,
Ansari Nagar, New Delhi-110029
While Dr Raghuram Rajan is trying to give out banking licences in a fair and transparent manner, several members of the newly appointed financial inclusion committee are associated with groups looking to get a banking licence. The institutions that some of the committee members are associated with are focusing on the micro-finance/financial inclusion segment for their commercial interests, creating more potential conflicts of interest
I was impressed when Kumar Mangalam Birla, chairman of the Aditya Birla Group, resigned from the Reserve Bank of India (RBI)’s central board of directors. He had been appointed to the Central Bank’s board in June 2006. The resignation came several weeks after one of the companies in his group—Aditya Birla Nuvo—had applied for a banking licence. The group and company had all along maintained that there is no conflict of interest though. However, when the Chairman of a Group which applies for a Banking license has been serving as a Director of the RBI for the last several years and continues to be a director even while the applications are being processed, there is most certainly a conflict of interest. Anyway, it was good that finally Mr Birla resigned and with that the conflict of interest issue concerning ‘new banking licenses’ appeared to have died down. Or so one thought!
Dr Raghuram Rajan’s speech on 4th September assured that a highly transparent process would eliminate conflicts of interest in the grant of banking licenses. He said, “The RBI will give out new bank licenses as soon as consistent with the highest standards of transparency and diligence. We are in the process of constituting an external committee…this committee will screen licence applicants after an initial compilation of applications by the RBI staff. The external committee will make recommendations to the RBI governor and deputy governors, and we will propose the final slate to the Committee of the RBI Central Board.”
Well, since Dr Rajan raised a lot of expectations, we only wish conflicts of interests would be eliminated elsewhere too. The fact is, several members of the recently appointed RBI financial inclusion committee have direct (as well as indirect) links with institutions that have applied for (and/or partnered with others in the application for) banking licenses.
Remember, the committee is chaired by former banker Nachiket Mor, who is associated with Sughavazhvu Healthcare (which also appears to have a relationship to IFMR Trust1), besides being part of the 19-member central board of the Reserve Bank. The 13-member committee has some big names, including former Citigroup chief Vikram Pandit and Zia Mody, chief of corporate law firm AZB & Partners. Other bankers in the committee include Sunil Kaushal, CEO, Standard Chartered Bank India; SS Mundra, chairman and managing director, Bank of Baroda and Shikha Sharma, managing director and CEO, Axis Bank. The committee also has Bindu Ananth, president, IFMR Trust; Prakash Bakshi, chairman, NABARD; Bharat Doshi, chairman, Mahindra & Mahindra Financial Services; AP Hota, managing director and CEO, National Payments Corporation of India; Roopa Kudva, managing director and CEO, CRISIL Ltd; Ramesh Ramanathan, chairman, Janalakshmi Financial Services.
How strange that while Dr Rajan is trying to give out banking licences in a fair and transparent manner, several members of the newly appointed financial inclusion committee, themselves are associated with groups looking to get a new banking licence.
The larger point here is that there are multiple relationships between people on the recently named new financial inclusion committee and some of the entities that have directly applied for a banking license. Given these, I am not sure that one will be able to take Dr Rajan’s statement—regarding the highest standards of transparency and diligence to be followed in the grant of banking licenses—with a great degree of seriousness.
A second kind of conflict of interest
There is a possibility of a second kind of conflict of interest here. Many of the members of the committee are involved (directly or indirectly) with institutions providing commercial services to low income people - in other words, engaged in the business of ‘financial inclusion’. Some examples:
Therefore, institutions such as the above—with whom the financial inclusion committee members have a known and proven relationship—which are involved in the business of financial inclusion could stand to benefit from the recommendation of the committee to the RBI especially with regard to norms and procedures regarding regulation and monitoring of financial inclusion efforts (if the RBI were to implement these). And this is precisely what happened with MFIs, which resulted in lax supervision by RBI and culminated in the 2010 Andhra Pradesh micro-finance crisis.
To set the record straight, I have great professional regard for the members of the new financial inclusion committee. However, I am not sure that it is appropriate for a committee composed primarily of individuals, belonging to a set of highly inter-related service providers (financial and related services like credit rating, legal consulting for equity, health insurance etc), to alone set the regulatory and monitoring terms for a broad area (financial inclusion) where they currently operate or could do so in the future!
I am indeed shocked that a professional organisation like the RBI has created such a lopsided committee in the first place! What is really conspicuous is the lack of people representing clients, or small businesses or their associations, chambers of commerce and those with an experience in the rural/urban informal sectors and related areas. Protection of clients is a very critical issue and the lack of sufficient attention to this is what perhaps caused the US sub-prime and 2010 AP micro-finance crisis.
Committees, with a large and important mandate such as this one, need to have a diversity to have maximum effectiveness. There must be checks and balances and there is a strong need for pluralism. Packing a financial inclusion committee completely with (inter-related) people - whose institutions are themselves involved in the delivery (and related aspects) of financial services - could become a recipe for disaster as clearly demonstrated by past crisis situations.
Indeed, this committee itself is redundant. If at all the RBI is really interested in financial inclusion, it should push for concrete ground level action on plans already made (and gathering dust in the shelves) using products, processes and institutions that already exist. Even a mid-term review of the Dr Rangarajan Committee Report on Financial Inclusion could be seriously considered by the RBI so that we know what has been achieved on the ground vis-a-vis the ‘financial inclusion’ vision that was meticulously developed a few years ago. Further, planning and design can be made as we go along and I sincerely hope that Dr Rajan would strongly emphasise ‘action’ rather than unveiling yet another report of yet another committee!
 See end note below for a complete explanation of the relationship between IFMR Trust and SughaVazhvu Health Care Pvt. Ltd.
 Quoted from State of the Sector Report, 2012, Sage Publications, page 116. According to this source, “The IKP Centre for Technologies in Public Health (ICTPH) and partner Sughavazhvu Health Care are demonstrating an innovative managed healthcare model designed to provide high-quality, cohesive and low-cost health services to rural populations. SughaVazhvu Health Care Pvt. Ltd. is a wholly owned subsidiary of IKP Trust.” (page 116). Independently, The websites of ICTPH (http://www.ikptrust.org.in/ikp-centre-for-technologies-in-public-health.html), SughaVazhvu Health Care Pvt. Ltd (http://www.sughavazhvu.co.in/about-us.html) and IKP Trust (http://www.ikptrust.org.in/index.html) show Dr Nachiket Mor as a director. Additionally, the websites of ICAAP (http://www.ikptrust.org.in/ikp-centre-for-advancement-in-agricultural-practice.html) shows Dr Nachiket Mor as a director and also says under about us that: “IKP Centre for Advancement in Agricultural Practices (ICAAP) (http://advanceagripractice.in) is jointly owned by IKP Trust (51%) and IFMR Trust (49%) (www.ifmr.co.in) and is a Company under Section 25 of the Companies Act (1956).” One final point – Ms Sucharita Mukherjee is a director serving on the boards of IFMR Trust and ICTPH.
(Ramesh S Arunachalam has over two decades of strong grass-roots and institutional experience in rural finance, MSME development, agriculture and rural livelihood systems, rural and urban development and urban poverty alleviation across Asia, Africa, North America and Europe. He has worked with national and state governments and multilateral agencies. His book—Indian Microfinance, The Way Forward—is the first authentic compendium on the history of microfinance in India and its possible future.)
You may also want to read…
RBI’s New Financial Inclusion Committee: Bypassing the Parliament?