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The Federal Tax Ombudsman (FTO), Dr. Shoaib Suddle has ordered the Federal Board of Revenue (FBR) to fully implement the provisions of Freedom of Information Act 2002 and supply information about tax matters to all applicants from general public asking for such information It was their right under the provisions of said law and cannot be denied.

The order was passed by the FTO on Tuesday last on a petition filed by a complainant, Whaheed Shehzad Butt under Freedom of Information Act 2002 against the FBR for refusing information related to the working of the Board.. According to the complainant, he had requested the FBR regarding total number of cases in which appeals were filed before the first appellate authority from July 2011 and the revenue involved in these cases and some other information of similar nature. The desired information was denied by The FBR. When approached through my lawyer , the department filed a reply that the data requisitioned pertained to privileged/ confidential information regarding the tax payers and thus it could not be supplied under the law.

The FTO, however, did not agree with the contention of FBR and in his order of January 8, 2013 and observed that it was abundantly clear that as per Freedom of Information Act 2002 (FOIA) and the Constitution, the respondents were bound to provide the information sought by the petitioner. "The request for providing such information cannot be denied without being in violation of the law and the Constitution." Mr. Suddle observed in his order. He rather asked the FBR to appoint an officer specially to ensure the prompt compliance of such requests by the public at large.

From the reply of the department on Mr. Shehzad petition, it appeared hat the respondents were not aware of the requirements and their compulsion under the Freedom of Information Act. Any citizen when denied information requested by him from FBR or any of its subordinate departments can approach the Federal Tax Ombudsman with a request to intervene.

The FTO observed in its order that Freedom of Information Act enables citizens to ask for publicity-held information as a matter of right. It enables citizens to have an access to public records. Its purpose is to ensure transparency and promote good governance by making government more accountable and open. It is also meant to make the government more efficient and citizen-friendly in delivering public services. Globally, many countries have enacted freedom in information laws. Sweden was the first country to enact such a law. Pakistan became the first such country in South Asia, when the freedom of information ordinance was promulgated in 2002.

It goes without saying that access to information is a sine qua-non for a constitutional democracy. The public has a right to know everything done by the public functionaries, subject to any restriction imposed by law. The responsibility of public functionaries is to disclose works against both corruption and high handedness. Though this right has its limitations, the routine business of a public functionary cannot be allowed to be cloaked in the veil of secrecy and privilege. As a rule, information of public interest must be disclosed with minimum delay when a valid reason for its disclose is given. Only as an exception should the privilege be claimed on justifiable grounds permissible under the law. Under section 3 of the FIO, the provisions of the FIO are to be so interpreted as to facilitate prompt disclosure of information at minimal cost.

Section 3 also contains a non-obstante clause which provides that notwithstanding anything contained in any other law for the time being in force, no person is to be denied information contained in any official record. The only limitations to this right are the immunities described in sections 8, 15,16,17 and 18 of the FIO.

When an exemption is claimed from making a disclosure, the scales of justice have to be tilt a bit towards permitting disclosures in order to balance the public right to information against narrowly constructed interests of a government agency. No doubt, where there are two competing results involved, the Federal Tax Ombudsman is expected to perform a balancing act by weighing both interests and deciding how much and when to tilt.

In the present case, the data/documents requested by the Requester do not fall within any of the exemptions provided under the FIO. No exemption can be claimed on the basis of any other law. The provisions of the Freedom of Information Ordinance 2002 also have overriding effect over the provisions of the Income Tax Ordinance, 2001 as given in section 3 of the FIO..

Finally, article 19-A of the constitution of Pakistan enshrines the right of information as a fundamental right, subject to regulation and reasonable restriction. The Income Tax Ordinance is not only a piece of legislation that is superseded by section 3 of the FIO but it is an organic law as compared to the Constitution. Even otherwise none of the provisions of section 216(1) (a). (b) and (c) of the Income tax Ordinance are attracted to the instant request for information.

The land-mark last week judgment of the Federal Tax Ombudsman , it is being felt, will help in unmasking the tax evaders and curbing the rampant corruption in the FBR depriving the nation of thousand of billion rupees every year. According o experts the tax potential of the country is about 5000 billion rupees while the FBR is finding it difficult to meet the running financial year target of Rs.2351 billion.
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Publication:Pakistan & Gulf Economist
Date:Jan 20, 2013

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