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Are Double Tax Avoidance Agreements Superior to the Indian Judiciary, Parliament and People's RTI: An Analytical Piece

Dear all,

The black money scandal India has reached an important milestone today thanks to the sustained interventions of the Petitioners and the interest taken by the Hon'ble Supreme Court. I have attached an analytical piece that looks at the Double Tax Avoidance Agreements regime and Government of India's (GoI) role under various political parties and alliances. For the sake of brevity I am only copying below my thesis and the sub-headings under which the article is divided.

In short my submission on the basis of my analysis is that DTAAs are being interpreted by GoI in a manner:


1) that curbs the independence of the judiciary by curtailing the plenary powers of the Supreme Court and the High Courts to call for financial information of citizens and other entities in India supplied by foreign countries, by giving the Executive the power to deny access to such information in all in non-tax related matters;

2) that subordinates laws made by Parliament to these bilateral treaties; and

3) that curtails the scope of the people’s right to know under the pretext of protecting the right to privacy of some high net worth individuals (HNIs), firms and corporations who may or may not be tax evaders.


My thesis is explained in the attached article under the following subheadings:


  • Background of the black money case
  • Did GoI under the NDA negotiate better DTAAs when it had the opportunity?
  • What is the international DTAA regime?
  • India’s DTAAs
  • Article 26 of the OECD and the UN Model Double Tax Conventions 
  • Lifespan of India’s DTAAs
  • Modification of the Model Double Tax Conventions
  • International Peer Review Mechanism for ensuring compliance with the Model Double Tax Conventions
  • Influence of commentaries on Article 26 on the Indian position vis-à-vis transparency impact upon the independence of the judiciary and RTI
  • GoI’s Audacious guidelines on DTAAs and the status of information vis-à-vis RTI and the Income Tax Act
  • Grounds of GoI’s Interim Application filed on 17th October, 2014
  • Possible counter to the grounds mentioned in the IA
  • GFT’s discussion of the Apex Court’s Ruling in the Ram Jethmalani case
  • How often did GoI seek information about tax evaders under DTAAs recently?
  • Epilogue


This piece may be of interest for FOI practitioners who may be struggling to get similar information in their own countries. Please "Open Resources" to read the detailed article.
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DATED: Thursday, 30 October 2014 10:25
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