26 September 2013
Revenue Law — International Taxation — Double Taxation Agreement — Exchange of Information
By way of a letter dated 12 September 2012, the Comptroller of Income Tax (“CIT”) received a request from the Central Board of Direct Taxes of the Department of Revenue of India (“the Competent Authority of India”) for certain information, documents and bank records from two banks, BJY and Bank 2, pertaining to BJX. The request was made pursuant to Art 28 of the Agreement between the Government of the Republic of Singapore and the Government of the Republic of India for for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on (“Singapore-India DTA”) that provides for the exchange of information (“EOI”) in relation to the administration of tax issues in Singapore and India.
While the CIT has various powers under the Income Tax Act (“ITA”) to obtain information for the purposes of EOI, the information requested by the Competent Authority of India, consisting of banking documents, was protected from unauthorised disclosure under section 47 of Banking Act (Cap 19, 2008 Rev Ed) (“Banking Act”).
Accordingly, the CIT made an application to the High Court under section 105J of the Income Tax Act (“ITA”) on 26 February 2013 for an Order for the two respondent banks, BJY and Bank 2, to release certain information, documents and bank records pertaining to the third defendant, BJX.
Whether the two conditions set out under section 105J(3) were satisfied in the application by the CIT. They are:
(a) the making of the order is justified in the circumstances of the case; and
(b) it is not contrary to the public interest for a copy of the document to be produced or that access to the information be given.
In addition, the following two considerations were pertinent in the Judge’s decision on whether the making of an order under section 105J was justified in the circumstances:
(a) whether the information requested was foreseeably relevant; and
(b) whether the information requested disclosed a trade, business, industrial, commercial or professional secret or trade process (“Business Secrets”).
The CIT’s application was allowed.
The Judge was satisfied that the making of Order was justified and not contrary to the public interest for the following reasons:
(a) The Judge found that the EOI Request was not speculative, nor a “fishing expedition”. The taxpayer under investigation, BJX, was clearly identified and the purpose of the EOI Request was also sufficiently elaborated upon. There was also sufficient evidence to establish a connection between the tax investigations on BJX and the information in the Bank Accounts which would allow for the movement and amount of moneys transferred to be traced. Accordingly, the request met the standard of foreseeable relevance.
(b) Despite the Counsel for BJX’s claim that the banking documents requested from BJY and Bank 2 were akin to customer and supplier lists, and therefore were trade secrets, the Judge found that they did not fall within the narrow scope of Business Secrets. Moreover, the confidentiality provisions relating to the disclosure of information apply.
(c) The Judge was of the opinion that what constitutes public interest for the purposes of section 105J(3)(b) ought to be interpreted in a manner consistent with the Minister’s explanation during the Parliamentary Debates (at cols 1620–1621) and the OECD Commentary (at para. 19.5) which further explains this limitation with regard to EOI as only being relevant in “extreme cases”. On the Counsel for BJX’s argument that the disclosure of trade secrets would constitute an infringement of the rights of BJX which is contrary to the public interest, the submission was found to be untenable.
The above judgement was delivered on 13 September 2013.