A weak recovery on the cards
The market closed in the green, but off the highs, as the finance minister clarified there was no cause for concern about the tax residency certificates. A weak recovery is on the cards as the market is trying to form a base. The National Stock Exchange (NSE) recorded a volume of 74.55 crore shares and advance-decline ratio of 688:817.
The market, which plunged over 1.5% yesterday, opened in the positive this morning as investors picked up stocks at lower levels. In the international arena, the US markets ended with minor losses on Thursday as US investors were seen awaiting the outcome of a meeting of policy makers to avoid fresh taxes and spending cuts. A fall in China’s factory growth in February led the Asian markets lower in morning trade today.
The Nifty opened nine points up at 5,702 and the Sensex started off at 18,877, a gain of 15 points. Profit booking in early trade pushed the benchmarks into the negative for a short while to touch their intraday lows. At the lows, the Nifty fell to 5,680 and the Sensex went down to 18,821.
However, buying in capital goods, power, metal and consumer durables stocks helped the market recovered from its lows. The market remained in the positive for the remainder of the morning session boosted by a report of an uptick in manufacturing activity in February. The HSBC India Manufacturing Purchasing Managers’ Index (PMI)—a measure of factory production—stood at 54.2 in February.
A clarification from the finance minister that the status tax residency certificates (TRCs) held by foreign investors remains unchanged from last year, saw the market getting a further boost in post-noon trade. The news resulted in the indices hitting their highs with the Nifty at 5,739 and the Sensex touching 18,989.
The market closed off the highs as investors analysed the budget proposals announced by the finance minister on Thursday. The Nifty settled 27 points (0.47%) higher at 5,720 and the Sensex finished the session at 18,919, a gain of 57 points (0.30%) over its previous close.
The broader indices witnessed a mixed close, as the BSE Mid-cap index gained 0.29% 2.46% while the BSE Small-cap index fell 0.18%
The top sectoral gainers were BSE Consumer Durables (up 3.20%); BSE Capital Goods (up 1.62%); BSE Auto (up 1.50%); BSE Power (up 0.80%) and BSE Metal (up 0.63%). The losers were BSE 3.93%); BSE TECk (down 0.22%); BSE Fast Moving Consumer Goods (down 0.09%) and BSE Oil & Gas (down 0.04%).
Sixteen of the 30 stocks on the Sensex closed in the positive. The main gainers were Maruti Suzuki (up 4.98%); Jindal Steel and Power (up 2.87%); Bajaj Auto (up 2.63%); Larsen & Toubro (up 2.51%) and Cipla (up 2.40%). The main losers were Bharti Airtel (down 3.89%); Dr Reddy’s Laboratories (down 1.44%); ITC down 1.42%); Hero MotoCorp (down 1.30%) and TCS (down 1%).
The top two A Group gainers on the BSE were—Core Education Technologies (up 18.78%) and Suzlon Energy (up 18.07%).
The top two A Group losers on the BSE were—NHPC (down 10.56%) and DLF (down 6.25%).
The top two B Group gainers on the BSE were—MVL Industries (up 19.88%) and Gujarat Themis Biosyn (up 19.87%).
The top two B Group losers on the BSE were—Shri Lakshmi Cotsyn (down 19.97%) and Gennex Laboratories (down 19.17%).
Of the 50 stocks on the Nifty, 29 ended in the green. The key gainers were Maruti Suzuki (up 5.28%); Jaiprakash Associates (up 4.82%); Reliance Infrastructure, BPCL (up 3.51% each) and Power Grid Corporation (up 3.50%). The key losers were DLF (down 5.97%); Bharti Airtel (down 3.44%); IDFC (down 2.18%); Siemens (down 1.79%) and Cairn India (down 1.58%).
Markets across settled mostly in the positive on reports of a fall in Japanese consumer prices fell for the third straight month in January leading to speculations that the country’s central bank will initiate new measures to control deflation. Markets in China settled lower on reports of a fall in manufacturing activity last month.
The Jakarta Composite rose 0.33%; the Nikkei 225 gained 0.41%; the Straits Times added 0.05% and the Taiwan Weighted surged 0.84%. On the other hand, The Shanghai Composite fell 0.26%; the Hang Seng dropped 0.33% and the KLSE Composite shed 0.01%. The Seoul Composite was closed for trade today on account of a local holiday.
At the time of writing, the key European indices were trading with losses between 0.31% and 1.16% and the US stock futures were in the negative, indicating a lower opening for US stocks later in the day.
Back home, foreign institutional investors were net sellers of shares of a huge Rs1,317.79 crore on Thursday on account of the finance minister’s comments about tax residency certificates held by foreign investors. On the other hand, domestic institutional investors were net buyers of shares totalling Rs 417.94 crore.
Internet firm Info Edge, which owns job portal Naukri.Com, today said it has acquired software developer MakeSense Technologies for Rs8 crore. The latter has developed proprietary software for semantic search, which will augment search capabilities for both recruiters and job seekers, principally on the company’s portal Naukri.Com. Info Edge gained 1.89% to close at Rs354.95 on the NSE.
The Competition Commission of India has approved the proposed acquisition of a majority stake by the UK-based Diageo in UB group’s United Spirits. It said the deal would not have an adverse impact on competition. United Spirits climbed 1.85% to close at Rs1,874.10 on the NSE.
Karnataka Bank has increased interest rate on deposits by 25 basis points on all fresh retail term deposits of 1-2 years maturity period. The rate of interest on deposits has been increased from 9% to 9.25% with effect from 1st March. The stock declined 2.89% to close at Rs135.85 on the NSE.
The CIC had pulled up the PIO of Board of Management of Bombay Properties of the IISc for denying and blocking information for over two years despite its orders. This is the 50th 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 announcing that the Board of Management of Bombay Properties of the Indian Institute of Science (IISc) is a public authority under the Right to Information (RTI) Act, also pulled up the Public Information Officer (PIO) of for not supplying and for blocking the information for over two years.
While giving this important judgement on 15 February 2010, Shailesh Gandhi, the then Central Information Commissioner said, “The Commission deplores the acts of public authorities in unnecessarily wasting public money by delaying supplying information to the public by using public money. The PIO of the Board of Management of the Bombay Properties of the Indian Institute of Science is hereby directed to provide the complete information to the appellant before 5 March 2010.”
Mumbai resident Kayumars F Mehta, on 24 September 2007 sought information from the Board of Management of Bombay Properties of the Indian Institute of Science (IISc) about flats owned by the institute in the city, also known as Bombay Property. Here is the information he sought...
a) The names of present tenants since there was a proposal to transfer the flats to the defence forces.
b) Whether Edwart Investment was authorized by IISc to negotiate on its behalf.
c) Whether IISc is a charitable trust and does it fall under charitable commissioner or UGC.
d) Whether permission had been taken to allot flats to the defence forces.
e) The total transaction since the market value of the flats were estimated to be around Rs5 crore.
f) The benefits to IISc in the transfer of the flats.
g) Whether Edwart Investment controls IISc, Bangalore.
h) Act or legislation under which Edwart Investment has control over IISc Bangalore.
i) The person responsible for the loss of revenue.
j) Whether any bids/offers were invited to determine market value of the flats.
k) All the correspondence regarding between IISc and Edwart Investment.
The PIO provided an answer to only query c). He said, “IISc Bangalore is a central autonomous body under the HRD ministry, Government of India. IISc is also a deemed university under UGC.”
For all other queries, the PIO replied that “...property named ‘Bombay Property’ was offered by Late JN Tata to the Government of India to help the government establish IISc, by order dated 27 May 1908 under Charitable Endowments Act. The government then appointed a treasurer. A Board of Management had been constituted to manage the property."
The PIO of IISc on 1 November 2007 forwarded the RTI application to the Board, which replied that it was not covered by the provisions of the RTI Act. The Board said, “Even if it is covered by the provisions of the RTI Act, the information cannot be provided as it is exempt under the provisions of the RTI Act.”
Mehta filed three other RTI applications with the PIO of IISc. However, the PIO told him that the information sought was not available with them. Mehta then filed his first appeal before the First Appellate Authority (FAA) of IISc citing denial of information.
In its order, the FAA, stated that “the Board of Management handled matters relating to the Bombay Property. The institute had no authority over such matters. Internal correspondence within the Board of Management was not available with the Institute.”
Mehta then approached the CIC with his second appeal. In its order on 18 November 2008, the Commission said, “The Board has replied that they would not give the information without assigning any reasons. From the information provided by the respondent and the appellant, it appears that the Board consists of four members, out of whom two are Government of India nominees and one more member is a nominee of the IISc. If this information is correct, the Board is a public authority and is covered by the provisions of the RTI Act.”
Mr Gandhi, the CIC, then asked the PIO of the Board to reply to the RTI application. “If they (the Board) wish to deny the information they will give the reasons for denial as per the provisions of the Act,” he said in the order.
On 16 January 2009, Mehta received a letter from the secretary of the Board. The letter explained the constitution of the Board to support the contention that it is not a public authority. It further stated that even if it was assumed that the Board is a public authority, information sought by the complainant was personal in nature and therefore its disclosure would cause unwarranted invasion of privacy.
Mehta then filed two appeals, on 21 February 2009 and 23 March 2009 with the Board against the refusal of information by the Secretary. He was informed that the Board was not a public authority under Section 2(h) of the RTI Act vide letters dated 19 March 2009 and 9 April 2009.
He then again approached the Commission stating that he had not received information from the Board. The Commission registered Mehta’s complaint and issued notice to the Board directing them to respond to Mehta's RTI application.
On 29 October 2009, the Commission received a letter, in which the Secretary reiterated that the Board was not a public authority and requested an opportunity for hearing. The Commission then scheduled a hearing on 5 January 2010.
During the hearing, Mehta’s counsel submitted that since the Board had not challenged the Commission’s order of 18 November 2008, it should comply with it (the order). He also contended that the Board of Management was controlled by the government as out of the four members on the Board of Management three were government nominees.
The advocate on behalf of the PIO claimed that the Commission had passed a quasi-judicial order which could be rectified subsequently.
He stated that “in accordance with Section 4 of the Charitable Endowments Act 1890 (CE Act), a vesting order had been issued by which the Bombay property was donated by JN Tata in early 1904 for the benefit of IISc and it vested with the Treasurer. The Treasurer in accordance with Section 4(4) of the CE Act was not under an obligation to administer the property. Under Section 5 of the CE Act a different body was constituted under a Scheme to administer the property. This Scheme has to be ‘settled’ by the appropriate government and a notification or order is not issued by the government to constitute the Board. Clause 12 of the Scheme is the part relevant to the present case as it constitutes the Board of Management. The Scheme is not a notification or an order. The Board of Management is not answerable to the Institute.”
The Board of Management has four members—the Collector of Mumbai, a resident of Mumbai nominated by the Government of India; one representative of the Sir Dorabji Tata Trust and the Director of the IISc.
The advocate on behalf of the PIO also contended that just because the Board of Management has three nominees of the Government out of four members, it does not mean that the government exercises any form of control. He further contended that control over the trust was different from control over the trustee and that in this case the government did not have any control over the trust.
The PIO submitted that the Commission should only decide on the issue of whether the Board of Management should be considered a public authority and not decide on whether exemptions under Section 8 of the RTI Act apply to the information sought by the complainant (Mehta) in his various RTI applications.
After the hearing, the Commission then reserved its decision.
On 12 January 2010, while announcing its decision, Mr Gandhi, the CIC, said before deciding the issues it was necessary to first look at how the properties that are referred to as “Bombay Properties” and regarding which information has been sought by the complainant came to be vested with the Board.
The Board in its letter dated 16 January 2009 has contended that it is not a “public authority” as defined under section 2(h) of the RTI Act. It has stated in the letter that by a Power of Attorney dated 6 March, 1986 the Treasurer of Charitable Endowments for India had constituted the members of the Board as Constituted Attorneys and hence the members of the Board, which have changed from time to time, are constituted attorneys of the Treasurer of Charitable Endowments.
The vesting order had been substituted by a revised scheme called the “Scheme for the Administration and Management of the Properties and Funds of the Indian Institute of Science, Bangalore” (the Scheme) by a notification of the Central Government No8-20164-T.6 dated 22 May 1967.
The said notification clearly states that it is meant to be a revised scheme with effect from 22 May 1967 which has been issued by the Central Government under Section 5 of the CE Act, 1890. It is pertinent to reproduce Section 5 of the CE Act, 1890.
“5. Scheme for the administration of property vested in the Treasurer (1) on application made as hereinafter mentioned, and with the concurrence of the person or persons making the application the appropriate government, if it thinks fit, may settle a scheme for the administration of any property which has been or is to be vested in the Treasurer of Charitable Endowments, and may in such scheme appoint by name or office, a person or persons, not being or including such Treasurer, to administer the property” (emphasis supplied).
The Scheme for the Board of Management has been formulated according to the provisions of Section 5(2) of the CE Act, 1890. Section 5(2) states-
“5 (2) on application made as hereinafter mentioned, and with the concurrence of the person or persons making the application, the appropriate government may, if it thinks fit, modify any scheme settled under this section or substitute another scheme in its stead.” (emphasis supplied).
Mr Gandhi said, “The Board has been constituted in pursuance of a Scheme framed by the appropriate government. Thus the contention of the respondent that the members of the Board are the constituted attorneys of the Treasurer of Charitable Endowments cannot be accepted as it is clear that the Board owes its existence to the Scheme notified by the Central Government in accordance with the provisions of Section 5 of the Charitable Endowments Act, 1890.”
Section 2(h) of the RTI Act lays down the definition of public authority. The relevant sub-section (d) of section 2(h) is reproduced below:
“’public authority’ means any authority or body or institution of self-government established or constituted-
(d) by notification issued or order made by the appropriate Government, and includes any-
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government”
“In this case the respondent Board has been constituted to look after and manage all immovable properties along with other functions defined in para 12.2 of the Scheme. Therefore the Board, by the fact that it has been constituted through a Scheme which came into effect through a Central Government Notification, is a public authority as defined in Section 2(h)(d) of the RTI Act,” the Commission said.
The Board consists of four members; the Collector of Mumbai and one nominee from the IISc, both government officers. The resident of Mumbai is nominated by the government. Therefore three of the four members of the Board owe their positions on the Board due to their nomination by the government.
“Thus it can certainly be stated that the government is in control of the Board of Management through its nominees. The contention of the respondent Board that the members of the Board are constituted attorneys and the government does not exercise any functional control hence cannot be accepted,” Mr Gandhi said.
He said, “The Commission comes to the conclusion that the Board is controlled by the government, and thus the Board of Management of Bombay Properties of the IISc is a public authority as defined by Section 2 (h)(i) of the RTI Act.”
The Commission, while allowing the complaint, directed the Board to appoint a PIO and FAA before 31 January 2010. The Commission said it would decide the issue of whether information should be provided by the PIO or not on 12 February 2010.
However, on 9 February 2010, the Commission received a letter through fax dated 8 February 2010 from the secretary of the Board. The secretary informed the Commission that the Board had decided to challenge its decision through a writ petition and also requested not to proceed with hearing.
On the same day, the Commission informed the secretary of the Board that as he had not moved a writ petition till that date and there was no stay order issued by a court, the order of the Commission remains in force and has to be complied with. “Non-compliance of the Commission’s order which is still in force, may lead to initiation of penalty proceedings in accordance with the RTI Act, 2005. The Commission will hold a hearing on 12 February 2010 and the Commission may pass appropriate orders on that date,” the CIC said.
During the hearing, advocate on behalf of the Board, stated that he was not aware that the Board was public authority. He stated that the Board received the Commission’s decision only on 18 January 2010. He said he believed that he should be given 100 days to appoint a PIO as per section 5(1) of the RTI Act.
Mr Gandhi said, “The Commission wishes to point out that the Board was a public authority when the RTI Act received the presidential assent. The Board has not acted as per the law and not appointed a PIO though it was a public authority. Hence the Commission cannot accept that every public authority can go around claiming that firstly, they will not act as per the law, and then only after the Commission decides that they are a public authority take a further 100 days to appoint a PIO and FAA."
The advocate stated that the Board did not have an opportunity of asking the Commission to stay its order. He also stated that since the information has not been provided since 2007, the Commission should give the Board enough time to approach courts and no harm could come if further time was allowed to them.
Mr Gandhi said, “The Commission deplores this attitude of delaying matters by using judicial and quasi-judicial processes to prolong decisions. It is revealing that whereas the RTI Act expects information to be provided to the citizens in 30 days, the respondent feels that a delay of nearly 900 days is of no great consequence. Everyone is certainly entitled to use all the remedies available in law, but to use these to delay matters and to claim the right to delay as superior to the fundamental rights of citizens, appears to be making a mockery of the law.”
“It was explained to the respondent that he certainly has the remedy of going in a writ to the court but it has to be exercised before the expiry of the time given in the statutory order. It is significant that the respondent does not even appear to have approached a Court so far,” the Commission noted.
While announcing its decision on 15 February 2010, Mr Gandhi said, “The Commission has noticed that the RTI application has been filed in 2007 and in spite of a lapse of over two years information has not been provided. Sequentially the information has been blocked first by the IISc saying that the Board was a separate entity and the information was held by it and subsequently by the Board of Management claiming that it was not a public authority.”
“From the deposition of the advocate of the respondent it appears that the Board continues its defiance of an order issued by a statutory authority. His plea that the Supreme Court judgement quoted by the Information Commission is an obiter dicta, implies that he does not believe that the time limits given in a legally binding order must be obeyed,” it said.
Mr Gandhi said, “This is a very dangerous doctrine since it would imply that all orders given by law may not be obeyed within the time specified if a party wishes to challenge them at any time later. An interpretation of this kind challenges the very fundamental premise on which the rule of law prevails. It seeks to establish a doctrine that the time within which a legally delivered order is implemented is elastic, so long as there is an intention to challenge the order.”
Section 7(1) of the Right to Information Act, 2005, states that if information is not provided to the citizen within the time specified under the Act a personal penalty will be imposed on the defaulting public information officer.
“The respondent has given no valid reason for refusing to give his objections, if any, to disclosing the information. The onus to prove that denial of information was justified has been placed on the PIO as per section 19(4) of the RTI Act. However, since the respondent has refused to give any reasons, the Commission has applied its mind to the information sought by the appellant and finds that prima facie none of the exemptions of section 8(1) apply to the information sought by the appellant,” the Commission said in its order.
While allowing the appeal, it then directed the PIO of the Board to provide complete information to Mehta before 5 March 2010.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/C/2009/001346/6359final
Complaint No. CIC/SG/C/2009/001346
Complainant : Kayumars F Mehta
Mumbai - 400005.
Respondent : HD Malesra
Board of Management of Bombay Properties of the
Indian Institute of Science,
Candy House, Flat No 3, 1st Floor,
Mandlik Road, Colaba, Mumbai- 400001
It is unfortunate that the government has taken upon itself to undo and nullify legal precedents by amending the I-T Act that may prove beneficial to foreign investors from tax perspective
The finance minister, in his budget speech on Thursday, stressed on the importance of foreign direct investment (FDI) in India and also acknowledged that the Indian economy is a challenge.
However, whilst there is no denying on these facts, the question is do the actions of the finance minister justify his words? Contrary to lauding FDI as ‘imperative’ in his speech, the amendments made in Section 90A of the Income Tax Act (I-T Act) may turn out to be retrograde and retroactive.
In the previous budget of 2012-2013 the then finance minister Pranab Mukherjee had given a sizzler to foreign investors by making a retrospective amendment to Section 9 of the I-T Act to nullify the principles laid down by the Vodafone Case1. The retrospective amendment to Section 9 of the I-T Act meant that income from an asset or capital asset shall be deemed to accrue in India if being share or interest, it derives, directly or indirectly, its value substantially from the assets located in India. This amendment not only did become a point of debate worldwide, but also has been, along with other reasons, considered responsible for decline of 43% in FDI inflows for the period April–November 2012 when compared to the corresponding period of the preceding year.
However, the sanctity of the Azadi Bachao Case2 was maintained and treaty benefits to avoid double taxation of the foreign investor. Chapter IX of the I-T Act provided the following relaxations and benefits to a non-resident assessee:
As a result of the chaos created by amendments the I-T Act pertaining to non-residents or provisions affecting non-residents, the Shome Committee was set up to advice the government on implementation of the amended provisions of the I-T Act. Several recommendations were made by the Shome Committee in its final report3, wherein recommendations on Section 9 of the I-T Act, inter alia, included:
Key expectations from the Budget 2013-2014
Considering the havoc created by the previous budget (of 2012-2013), there were high expectations from the Budget to carry out a damage-control as well as provide clarity on various aspects on taxation. Some of the key expectations were:
What happened: The Finance Bill, 2013 failed to do what it sought to do
The Budget Speech gave a prima facie view that the government would make tax provisions favourable to foreign investors so as to encourage foreign investments. However, a look at the fine prints of the Finance Bill, 2013 (Bill) brought back the hard reality of the government, yet again, seeking to nullify Supreme Court decisions that favour foreign investors by amendment of laws.
Silence on Section 9
Where on one hand, no clarification was issued on Section 9 of the I-T Act, thereby maintaining status quo of the provisions, and continuing the endless debate and litigation, on the other hand “un-called for” amendments to Sections 90 and 90A of Chapter IX of the I-T Act, that deals with Double Taxation Relief, have taken away the principles deciding the conclusiveness of treaty benefits which had evolved over the years by the courts of India through strenuous, time consuming, much discussed and deliberated arguments.
Chapter IX amended to nullify Azadi Bachao Case
The amendments to Section 90 and 90A provide for the following:
Ambiguity on applicability of Section 90(5)
While by reasonable implication, it could be said that the provision shall be applicable with effect from the date of the Bill, viz. 1 April 2013, on an extended argument, it could be argued that determination of residential status is something that can be done every assessment year and there is no res judicata as far as residential status is concerned. This would mean that even if some assessee has been treated as resident in previous years, the tax officer can re-agitate the residential status issue in the current assessment year on the strength of the new provisions. It has been consistently held by the courts of India that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation. However, in case of Thirumalai Chemicals Vs Union of India & Ors.4, the Supreme Court held that in the absence of any express provision, while substantive law always becomes effective prospectively, a procedural law would have a retrospective effect.
Following principles, however, have been set out while determining the extent of the retroactive procedural laws:
GAAR: Rebuttable presumption
Chapter X-A has been replaced by a set of new provisions which, inter alia, provide that a rebuttable presumption shall exist that any arrangement entered into by parties has been entered into to obtain tax benefit. Further, previously the considerations on period of time of arrangement, payment of taxes under the arrangement and exit route (including transfer of any business or activity or operations) was provided under the arrangement were to be taken into account while determining whether arrangement lacks commercial substance, the amendment clarifies that such considerations are only “relevant but not sufficient”.
Clearly, not only has the government undone and nullified the principle set out in the Azadi Bachao Case, a tax residency certificate of Mauritius held by a non-resident assessee shall be conclusive to give benefit under the DTAA between India and Mauritius, it has also applied a rebuttable presumption under Chapter X-A that any arrangement entered into by parties has been entered into to obtain tax benefit.
The Government of India, even though has publically acknowledged the unquestionable role played by FDI to boost the India economy, it has continued to make “un-called for” amendments to the I-T Act to further, and yet again, bring within its garb the income of non-residents derived from India. Such amendments not only prove repulsive to the foreign investors but also severely hammer down India as an investor friendly country.
It is left best to the government to justify how the above amendments seek to achieve and encourage FDI in India, which seeks to be ‘imperative’ in the finance minister’s own words, especially considering that no other special benefits have been extended to lure foreign investors into India. It is unfortunate that the government has taken upon itself to undo and nullify legal precedents proving beneficial to foreign investors from tax perspective by amending the I-T Act. Interesting that what could not be fought out in the courts by the government is being carried out by amendment of the I-T Act!
5 Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602
6 Zile Singh v. State of Haryana, (2004) 8 SCC 1