Memorial On Behalf of The Petitioner

ULC 03
IN THE HONBLE SUPREME COURT

OF
BRITUSSIA
WRIT PETITION NO: _____/2015

[UNDER ART. 32 OF THE CONSTITUTION OF INDIA]
--IN THE MATTER OF--
.PETITIONER
AMERSIA ASSOCIATION
VERSUS
UNION OF BRITUSSIA
....RESPONDENT
XIX ALL INDIA MOOT COURT COMPETITION, 2015
MEMORANDUM ON BEHALF OF THE PETITIONER

DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER
TABLE OF CONTENTS
TABLE OF CONTENTS.......I
LIST OF ABBREVIATIONS..III
INDEX OF AUTHORITIES....III
STATEMENT OF JURISDICTION.VII
STATEMENT OF FACTS...VIII
ISSUES OF CONSIDERATION..IX
SUMMARY OF ARGUMENTS....X
WRITTEN SUBMISSIONS..1
1. Whether Government of Britussia was violating Fundamental Rights of Citizens of

Amersia and PAOs guaranteed under the Constitution?.......................................................1
1.1. That not providing the opportunity of being heard before sharing the information is
violation
of
fundamental
rights
guaranteed
under
the
Constitution.....1
1.2. That arbitrary disclosure of bank accounts with properly accounted funds violates the
right to privacy...4
1.3. That arbitrary disclosure of bank accounts resulted in loss of personal liberty7
1.4. That arbitrary disclosure of bank accounts resulted in loss of business.9
1.5. Conclusion for the first issue....10
2. Whether Article 26 of the DTAA was liable to be struck down to the extent it was beyond
the power of the Government under Section 90 of the Income Tax Act of
Britussia?.................................................................................................................................11
2.1. That article 26(3) is in violation of Section 90(1)(c) of the Income tax act of
Britussia.11
2.2. That provision involving transfer of information relating to capital beyond the scope of
section 90(1)(c) of Income Tax Act of Britussia ...12
2.3. That the provisions of Article 26 provide uncanalized and uncontrolled power to the
competent authority.14
2.4. Conclusion for the second issue16

-DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER-
Page I
3. Whether Government of Britussia was wrong in sharing further requests from

Government of Amersia consequent to the violation of secrecy clause under Article 26 of
the DTAA?...............................................................................................................................17
3.8. Conclusion for the Third Issue.19
4. Whether the government of Britussia was wrong in sharing the information of a NonResident?.................................................................................................................................20
4.1.That Amersia-Britussia DTAA was binding on the residents of the contracting state
....20
4.2.That the government of Britussia was not bound to share the information of the NonResidents...21
4.3.Conclusion for the fourth issue.....22
PRAYER ..XII

Page II
INDEX OF AUTHORITIES
LIST OF STATUTES/REGULATIONS/RULES
1. The Constitution of India, 1950.

2. Income Tax Act, 1961
3. International Covenant on Civil and Political Rights, 1966.
4. Universal Declaration of Human Rights, 1948.
5. Indo-Hungary DTAA, Notification No: GSR 197(E), dated 31/03/2005.
LIST OF ABBREVIATIONS AND ACRONYMS
AIR
All India Reporter
A. P.
Andhra Pradesh
Art.
Article
&
And
Anr.
Another
Bom.
Bombay
Del.
Delhi
DTAA
Double Taxation Avoidance Agreement
Ed.
Edition
Govt.
Government
HLR
Harward Law Review.
Kan.
Karnataka
Ltd.
Limited
Mad.
Madras
Ors.
Others
Paragraph
Sec.
Section
SC
Supreme Court

Page III
SCC
Supreme Court Cases
i.e.
that is
v.
versus
vol.
Volume
BOOKS AND COMMENTARIES

1. D. D Basu, Shorter Constitution of India, 13th Ed., Rep.(2006), Wadhwa and
Company, Nagpur.
2. Dr. J.J.R. Upadhyaya, Administrative Law, 7th ed.(2009), Central Law Agency,
Allahabad.
3. Dr. Vinod K. Singhania & Dr. Kapil Singhania., Taxmanns Direct Taxes Law and
Practice, 52nd Ed., (2014).
4. Sampat Jain Public Interest Litigation, 2nd Ed.(2003), Deep and Deep Publications,
Delhi.
5. G.G. Singh, Principles of Statutory Interpretation, 12th Ed.,Rep. (2011), Lexis Nexis
Butterworths Wadhwa Nagpur.
6. C.K. Takwani Lectures on Administrative Law 5th Ed.(2002), Eastern Book Company,
Lucknow.
7. B.L. Wadhera. Public Interest Litigation 4th Ed. (2014), Universal Law Publishing Co.
Pvt. Ltd. Delhi.
DICTIONARIES
1. A. G. Bryan, Blacks Law Dictionary, 9th Ed., 2009, West Group.
2. Daniel Greenberg, Strouds Judicial Dictionary of Words and Phrases, 7th Ed. Sweet and
Maxwell Co.
3. P. Ramanatha., Concise Law Dictionary, 3rd Ed., Rep. 2006, Wadhwa, Nagpur.
ELECTRONIC MEDIUM
1. http://www.manupatra.com (browsed on 10/01/15, 18/01/15, 28/12/14, 08/12/14, 20/01/15)
2. http://www.jstor.com (browsed on 21/12/14)
Page IV
3. http://www.mca.gov.in (browsed on 22/12/14, 08/01/15, 18/01/15)

4. http://www.sebi.gov.in (browsed on 23/12/14, 10/01/15, 20/12/14)
5. http://www.lexusnexus.com/in/legal (browsed on 5/01/15, 8/01/15)
LIST OF CASES
1. Additional District Magistrate (Rev.) v. Sri Ram, (2000) 5 SCC 452...11
2. Air India v. Nargesh Meerza, (1981) 4 SCC 335..............................................................15
3. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 ( 16, 19);..1
4. Bachan Singh v. State of Punjab, AIR 1982 SC 13251&2
5. Baksey, (1954) 347 M.D. 442........10
6. Basudeo Tiwary v Sido Kanhu University, (1998) 8 SCC 194: AIR 1998 SC 3261..1
7. Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668...3
8. Cadell Weaving Mill Co. vs. CIT, 249 ITR 26512
9. Central Inland Water Transport Corporation Ltd. v. Brojo Nath, AIR 1986 SC 1571........2
10. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988;..9
11. CIT vs. D.P. Sandu Bros. Chember (P) Ltd., 273 ITR 1...12
12. D. K. Yadav v J. M. A. Industries, (1993) 3 SCC 258...9
13. D.T.C. v. Mazdoor Union D.T.C., AIR 1991 SC 1011&2
14. David John Hopkins v. Union of India & Ors., AIR 1997 Mad 366.......9
15. Delhi Transport Undertaking v. B.B.L. Hajelay, AIR 1972 SC 2452...............................11
16. Devi Das Gopal Krishnan & Ors v. State of Punjab & Ors., 1967 SCR (3) 557.............14
17. District Registrar & Collector, Hyderabad v. Canara Bank (2005) 1SCC 496 ......1
18. Dolly Chandra v. Chairman Jee, (2005) 9 SCC 779...2
19. Francis C. Mullin v. Union Territory of Delhi, Administrator, AIR 1981 SC 746........8&9
20. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514...2
21. Hindustan Petroleum Corporation Ltd. v. ADIT, (2010) 130 TTJ 518 (Mum.)....21
22. Indravadan H. Shah v. State of Gujrat, AIR 1986 SC 1035....1
23. Javed v. State of Haryana, AIR 2003 SC 3057....2
24. Kadra Pahadiya v. State of Bihar, AIR 1982 SC 11678
Page V
25. Kaushal P.N. v U.O.I., AIR 1978 SC 1457(paras 60-62)..16

26. Kehar Singh v. UOI, (1989) 1 SCC 204..8
27. Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295..4&7
28. M.P. Electricity Board, Jabalpur v. Harsh Wood Products, (1996) 4 SCC 522..1
29. Mahabir Auto Store v. Indian Oil Corporation 1990 SCR (1) 818.2
30. Makkhan Singh Tarsikka v. State of Punjab, AIR 1952 SC 27...8
31. Maneka Gandhi v. UOI, (1978) 1 SCC 248...7&8
32. Municipal Committee, Patiala v. Model Town Residents Assn., AIR 2007 SC 2844.15
33. Municipal Corporation of Greater Bombay v. Nagpal Mills & Anr. 12
34. N.C.C.B. v. Ajay Kumar, AIR 1994 SC 39 ( 5)....2
35. Narendrajit Singh Sahni v. U.O.I8
36. Olga Tellis and others v. Bombay Municipal Corporation & Ors, AIR 1986 SC 180........9
37. Peoples Union for Civil Liberties v. Union of India, AIR 1997 SC 568;..4
38. Pradeep Jain v UOI, AIR 1984 SC 1420 ( 10, 13).1
39. R. D. Shetty v Airport Authority, AIR 1979 SC 1628; ( 10, 21)......1&2
40. R. Rajagopal v. State of T.N., (1994) 6 SCC 632...4
41. Ram Jethmalani & Ors. v. Union of India & Ors. 2011 8 SCC 16
42. Ramji Lal v. State of U.P., AIR 1957 SC 620.....2
43. Sitaram Vishambhar Dayal v. State Of U.P., AIR 1972 SC 116...16
44. State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 7515
45. Sudhir Chandra v. Tata Iron & Steel Co. Ltd. AIR 1984 SC 1064,1071..15
46. Suraj Mall Mohta& Co. v. A.V. Visvanathasastri AIR 1954 SC 545..15
47. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.................................................2
48. Union of India & Anr. v. Azadi Bachao Andolan & Anr., AIR 2004 SC 1107................18
49. Vasantlal Maganbhai Sanjanwala v. State of Bombay & Ors., AIR 1961 SC 4...............14
50. VISPL v. Union of India and Ors. Bombay High Court WP/871/2014....12
51. Yasin v. Town Area Committee, AIR 1952 SC 115....................................................13&1
52. Avinder Singh v. State of Punjab, AIR 1979 SC 321.16

Page VI
STATEMENT OF JURISDICTION
It is most humbly submitted that the Petitioner has approached this Honble Supreme Court
under Article 32 1 of the Constitution of Britussia for the violation of Fundamental Rights
guaranteed under the Constitution of Britussia by filing a Public Interest Litigation.
The petitioner most humbly and respectfully submits before the jurisdiction of the present court
and accepts that it has the power and authority to preside over the present case.
Article 32 in The Constitution Of India, 1950-
32. Remedies for enforcement of rights conferred by this Part(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by
the Supreme Court under clause ( 2 ).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Page VII
STATEMENT OF FACTS
FACTUAL BACKGROUND
Amersia and Britussia are two neighboring developing countries. Both the countries were,
however, plagued with the problem of high taxes, leakages in tax collections and in
generation of unaccounted monies by a few, leading to low standard of living of majority of
its citizens.
The
Government
of
Britussia
negotiated
and
entered
into
Tax
Avoidance
Conventions/Agreements (popularly referred to double taxation avoidance agreements)

containing, inter alia, specific clauses for Exchange of information with many Countries
including Amersia. The Amersia- Britussia Double Taxation Avoidance Agreement (DTAA
in short) was also notified in January 2014.
The Government of Amersia, received many Dossiers containing information under the
DTAA from the Government of Britussia. It started selectively leaking information of bank
accounts held by its citizens/PAOs and their business entities in Britussia to the Press. Some
ministers in the Government of Amersia publicly announced the names of their political and
personal opponents whose names were listed in the Dossier. No investigation or other
proceedings have been initiated against such persons till date.
Television Channels in Amersia ran continuous media trials of the persons whose names
were selectively or vindictively disclosed and created negative publicity for such individuals
and their businesses.
PROCEDURURAL BACKGROUND
The members of Amersia Association (Association in Short), an association formed for
protecting the social, cultural, financial and other interests of Citizens of Amersia and PAOs
in Britussia were alarmed by the turn of events in respect of the two non-members. With
respect to the issue the association reached the Prime Minister of Britussia,who refused to
help them for the reason that any such move will result in it losing information sources in its
mission to recover unaccounted money.
Having left with no choice, the Amersia Association filed a Public Interest Litigation under
Article 32 of the Constitution before the Supreme Court of Britussia seeking various relief.
Page VIII
ISSUES FOR CONSIDERATION
1. WHETHER GOVERNMENT
CITIZENS
OF
AMERSIA
OF
AND
BRITUSSIA
PERSONS
OF
WAS VIOLATING
FUNDAMENTAL RIGHTS
AMERSIAN ORIGIN
OF
GUARANTEED UNDER THE
CONSTITUTION?
2. WHETHER ARTICLE 26 OF THE DTAA WAS LIABLE TO BE STRUCK DOWN TO THE EXTENT ITWAS BEYOND THE POWER OF THE
GOVERNMENT UNDER SECTION 90
OF THE INCOME
TAX
ACT OF BRITUSSIA?
3. WHETHER
THE
GOVERNMENT
OF
BRITUSSIA
WAS
WRONG
IN
SHARING FURTHER
INFORMATION CONSEQUENT TO THE VIOLATION OF THE SECRECY CLAUSE UNDER ARTICLE

26 OF THE DTAA?
4. WHETHER THE GOVERNMENT OF BRITUSSIA WAS WRONG IN SHARING THE INFORMATION OF
A NON RESIDENT?

Page IX
SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER GOVERNMENT

CITIZENS
OF
AMERSIA
AND
OF
BRITUSSIA
PERSONS
OF
WAS VIOLATING
AMERSIAN ORIGIN
FUNDAMENTAL RIGHTS
OF
GUARANTEED UNDER THE
CONSTITUTION?
It is submitted that providing an opportunity of being heard enables the suspected person to have
an opportunity to remove any kind of mistake, misapprehension or misunderstanding, if any, it
also enables him to prepare his defense. The suspected persons whose information is so collected
and shared must be kept informed of the same in accordance of the principle of natural justice
the opportunity of being heard. The procedure which has been established by Britussia for
sharing of information Amersia is unreasonable, arbitrary, whimsical and fanciful as they do not
contain any provision for checking the credibility of the information to be shared, which is a
typical instance of abuse of power and departure from the procedure established by law thus
violative of right to privacy enshrined under Article 21. In the instant case, the Amersian citizens
and PAOs having bank accounts in Britussia lost their business/ livelihood due to protests and
violence against them due to the arbitrary sharing of information by the Government of Britussia
without checking the credibility of the same. In the light of the aforementioned contentions it is
firmly established that the Government of Britussia violated various Fundamental Rights
guaranteed under the Constitution of Britussia to citizens of Amersia and PAOs by arbitrarily
sharing their confidential information with the Government of Amersia.
ISSUE 2: WHETHER ARTICLE 26 OF THE DTAA WAS LIABLE TO BE STRUCK DOWN TO THE EXTENT
IT- WAS BEYOND THE POWER OF THE
GOVERNMENT UNDER SECTION 90 OF THE INCOME TAX ACT
OF BRITUSSIA?
The provisions of the DTAA for the exchange of information was in particular for the prevention
of fraud, whereas, the parent or enabling act provides for transfer of information for prevention
of evasion or avoidance of Income Tax provided under the Act. Thus, the rule making authority
Page X
in this perspective travels beyond the scope of the enabling act, hence liable to be declared ultra
vires. It is most humbly submitted before the kind consideration of this Honble Court that the
provisions relating to transfer of information involving capital goes beyond the scope of Section
90 (1)(c). It is a settled principle that income does not include capital under the meaning of
income under Section 2(24). . Thus transfer of information relating to capital or total capital
would be beyond the scope of the parent or enabling act as it is a delegated piece of legislation
which is in excess of the powers conferred by the parent act. Hence the Government of Britussia
was wrong in sharing the information beyond the scope of Art. 26. The provisions of Article 26
provide uncanalized and uncontrolled power to the competent authority due to the fact that the
process of exchange of information is left to the discretion of the competent authority. Such a
provision provides with the executive uncanalized and uncontrolled power to act on their own
accord in absence of any guidelines framed by the legislature.
ISSUE 3: WHETHER
THE
GOVERNMENT
OF
BRITUSSIA
WAS
WRONG
IN
SHARING FURTHER
INFORMATION CONSEQUENT TO THE VIOLATION OF THE SECRECY CLAUSE UNDER ARTICLE 26 OF

THE DTAA?
It is submitted that article 26(2) of the Convention specifically mentions that information
received shall be treated as a secret and it shall be disclosed only to persons or authorizes
including courts or administrative bodies the television channels in Amersia ran continuous
media trials of the persons whose names were selectively or vindictively disclosed and created
negative publicity for such individuals and their businesses. There was hue and cry against such
persons. There was also loss of business, property and life. Also political expediency cannot be a
ground for not fulfilling the constitutional obligations inherent in the Constitution of India and
reflected in section 90 of the Income Tax Act. The article confers power to lay down a law which
is not contemplated under the Act on the ground of political expediency, which cannot but be
ultra vires

Page XI
ISSUE 4: WHETHER THE GOVERNMENT OF BRITUSSIA WAS WRONG IN SHARING THE INFORMATION
OF A NON RESIDENT?
It is humbly submitted before this Honble Court that, Article 1 of the DTAA sets the personal
scope of Agreement between the two Contracting States, i.e., Britussia and Amersia, according
to which the convention shall be binding on the residents of one or both of the Contracting States
only. Hence, Article 26 which provides for exchange of information between the contracting
states, for purposes stated under Article 26(1), cant be made applicable to the non residents
and consequently the information of non residents cannot be exchanged under DTAA, and for
the same Government of Britussia is not bound. Information requested by the Amersian
Government was merely a device to satisfy its tussle with political and personal opponents and it
only requested the information by the way of fishing expeditions and as such there was no
foreseeable relevance of the information requested for the administration and enforcement of
Tax Law thus it was not obligatory on the part of the Government of Britussia to entertain such
requests and share their information.

Page XII
WRITTEN SUBMISSIONS
1. WHETHER GOVERNMENT
OF
BRITUSSIA
WAS VIOLATING
FUNDAMENTAL RIGHTS
OF
CITIZENS OF AMERSIA AND PAOS2 GUARANTEED UNDER THE CONSTITUTION?
1.1. THAT,
NOT PROVIDING THE
OPPORTUNITY
OF BEING HEARD BEFORE SHARING THE
INFORMATION IS VIOLATIVE OF FUNDAMENTAL RIGHTS GUARANTEED UNDER THE CONSTITUTION.
1.1.1. It humbly submitted that, the right of audi alteram partem is a valuable right recognized
under the constitution of Britussia, wherein it is held that, the principle of the maxim
which mandates that no one should be condemned unheard, is a part of the rule of
natural justice.3 The audi alteram partem facet of natural justice is also a requirement of
Art. 14, for natural justice is the antithesis of arbitrariness, 4 and Art. 14 5 strikes at
arbitrariness of State action in any form,6 as it permeate the entire fabric of Rule of
Law.7
1.1.2. It is very pertinent here to take into account the case of Mahabir Auto Store v. Indian Oil
Corporation,8 where in the Apex court has held that,
Every action of the State executive authority must be subject to rule of law
and must be informed by reason and the same can be impeached on the ground that
the decision is arbitrary or violative of Article 14. So whatever be the activity of
the public authority, it should meet the test of Article 14 of the Constitution.
Persons of Amersian Origin.

M.P. Electricity Board, Jabalpur v. Harsh Wood Products, (1996) 4 SCC 522 : AIR 1996 SC 2258.
4
D.T.C. v Mazdoor Union D.T.C., A.I.R. 1991 SC 101; Basudeo Tiwary v Sido Kanhu University, (1998) 8 SCC
194: AIR 1998 SC 3261.
5
Article 14 of the Constitution of Britussia Equality Before Law
6
Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 ( 16, 19); Pradeep Jain v UOI, AIR 1984 SC 1420 (
10, 13); Indravadan H. Shah v. State of Gujrat, AIR 1986 SC 1035; Ramana Dayaram Shetty v. I.A.A.I., A.I.R.
1979 SC 1628 ( 10, 21); D.T.C. v. Mazdoor Union D.T.C., AIR 1991 SC 101.
7
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
8
1990 SCR (1) 818.
3

Page 1
Hence, this requirement of natural justice is applicable not only to judicial9 or quasijudicial orders but also to administrative orders affecting prejudicially the party in
question,10 and, any action imposing any restriction on the opportunity of hearing was
wholly arbitrary, unreasonable and against public policy, and thus, violative of Art. 14 of
the Constitution.11
1.1.3. It is submitted that the term reasonableness is very significant to determine the
synchronization of the restriction imposed with the entire fabric of Fundamental Rights.12
It is further submitted that a restriction is unreasonable if it takes away within its ambit
activities which constitute a legitimate exercise of fundamental rights guaranteed by
the Constitution. 13 Thus, in the case at hand, the administrative order of sharing of
information under Double Taxation Avoidance Agreement (hereinafter as DTAA),
restricting the opportunity of hearing is unreasonable as it is an arbitrary abridgement of
fundamental rights guaranteed under Art.14 of the Constitution.
1.1.4. The counsel further submits that, Art. 14 strikes at arbitrariness because it negates
equality14 and permeates the entire fabric of Rule of Law.15 Therefore, every action of
the State must be guided by reason for public good and not by whim, caprice, and
abuse of power.16 However, in the instant case, the denial of the opportunity of being
heard for unknown and unguided reasons shall amount to abuse of power and should be
regarded as arbitrary use of power. Thus, the whimsical decision of the authorities of not
providing the opportunity of being heard before sharing the information, which abridges
N.C.C.B. v. Ajay Kumar, AIR 1994 SC 39 ( 5).

D.T.C. v. Mazdoor Union D.T.C., AIR 1991 SC 101 ( 199, 244, 251, 262, 264, 267)
11
Central Inland Water Transport Corporation Ltd. v. Brojo Nath, AIR 1986 SC 1571;
12
Javed v. State of Haryana, AIR 2003 SC 3057.
13
Ramji Lal v. State of U.P., AIR 1957 SC 620.
14
R. D. Shetty v Airport Authority, AIR 1979 SC 1628; Suresh Chandra Sharma v. Chairman, AIR 2005 SC
2021.
15
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
16
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee,
(2005) 9 SCC 779.
10

Page 2
the fundamental right of a person to be heard shall be regarded as arbitrary and in

violation of Art. 14 of the Constitution.
1.1.5. The counsel humbly acknowledges the fact that, the exchange of information between the
contracting states is to give effect to the DTAA between the two states which aims at the
avoidance of double taxation and prevention of fiscal evasion, which is undoubtedly pro
bono. However, even a statute which provides for civil or evil consequences must
confirm to the test of reasonableness, fairness and non-arbitrariness.17
1.1.6. In the case of Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board,18 the
impugned provisions were held to be per se unreasonable, arbitrary and violated the
principles of natural justice and there were no guidelines in the impugned Act and hence,
the court declared the impugned Act unconstitutional, it being violative of Art. 14 of the
constitution. In the instant case, the impugned provisions for exchange of information
contained under Art. 26 of DTAA lay down no such guidelines for checking the validity
and authenticity of information to be shared. No such criteria have been laid for the
investigation of the credibility of the information, and, for providing the opportunity of
being heard, before the same is being exchanged with the other contracting state and
hence, the same is an arbitrary use of delegated power by the authorities and is violative
of the principles of natural justice and Art. 14 of the Constitution.
1.1.7. The counsel humbly submits that, providing an opportunity of being heard serves two
purposes, firstly it enables the suspected person to have an opportunity to remove any
kind of mistake, misapprehension or misunderstanding, if any, in the mind of the
authority who is authorized to share such information and secondly, it also enables him to
prepare his defense. Hence, the suspected persons whose information is so collected and
shared must be kept informed of the same. Thus, in accordance of the principle of natural
justice the opportunity of being heard must be provided to the person whose information
is being shared under the DTAA.
17
18
(2007) 6 SCC 668 ( 28, 37 &38).

Ibid.

Page 3
1.2. THAT,
ARBITRARY DISCLOSURE OF BANK ACCOUNTS WITH PROPERLY ACCOUNTED FUNDS
VIOLATES THE RIGHT TO PRIVACY.
1.2.1. It is submitted that, Right to Privacy is an integral part of right to life guaranteed under
Art. 21 19 of the Constitution. 20 Once the facts in a given case constitute a right to
privacy, Article 21 is attracted. The said right cannot be curtailed except according to
procedure established by law. 21 Right to Privacy is also a fundamental human right
recognized in the UN Declaration of Human Rights, 1948,22 the International Covenant
on Civil and Political Rights, 197623 and in many other international and regional treaties.
Privacy underpins human dignity and other key values such as freedom of association
and freedom of speech. It has become one of the most important human rights issues of
the modern age. Privacy is the most cherished of freedoms in a democracy, and he was
concerned that it should be reflected in the Constitution.24
1.2.2. It is further submitted that, in India the question of right to privacy was first raised in
Kharak Singh's case.25 In this case Subba Rao, J. had observed that:
"the right to personal liberty takes in not only a right to be free from
restrictions placed on his movements, but also free from encroachments on his
private life. It is true our Constitution does not expressly declare a right to
privacy as a fundamental right, but the said right is an essential ingredient of
personal liberty."
1.2.3. Privacy is a basic human right and the reasonable expectation of every person.26 In the
instant case, the right to privacy of Amersian citizens and PAOs having bank accounts in
Article 21 of the Constitution of India Protection of life and Personal Liberty.

Peoples Union for Civil Liberties v. Union of India, AIR 1997 SC 568; R. Rajagopal v. State of T.N., (1994) 6
SCC 632.
21
Ibid.
22
Article 12 of UDHR.
23
Article 17 of ICCPR.
24
W. Samuel and L. Brandeis, The right to privacy, 4 HLR., p. 193 200 (1890).
25
Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295.
19
20

Page 4
Britussia has been violated by the Government of Britussia who shared their information
of bank accounts with the Government of Amersia without seeking their permission to do
so. Such an act is a grave infringement upon privacy of the Amersian citizens and PAOs
having bank accounts in Britussia.
1.2.4. The Supreme Court in R. Rajagopal v. State of Tamil Nadu 27 has held that right to
privacy is implicit in the right to life and liberty guaranteed to the citizens by article 21. It
is a "right to be let alone". It is a right of the individual to be protected against intrusion
into his personal life or affairs, or those of his family, by direct physical means or by
publication of information.28
1.2.5. Personal data includes any information which is about a living, identifiable individual
and relates to the individual 29 . Financial records of an individual would therefore
classify as personal data and is subject to protection under an individuals right to
privacy. Arbitrary interference in any individuals privacy and their personal
information constitutes an infringement of his fundamental human right to privacy. 30
Interference is arbitrary when it does not pass the test of reasonableness.31
1.2.6. It is hereby submitted that, it is now a well established fact that bank account details are
an individual's private details which should not be shared and secrecy regarding the same
should be maintained. But, in the instant case, the Government of Britussia without
seeking permission from the account holders and conducting further investigation to
check the credibility of the information shared these details with the Government of
26
Australian Privacy Charter Group, Law School, University of New South Wales, The Australian Privacy
Charter(1994).
27
See Supra 20.
28
Report of the Committee on Privacy and Related Matters, Chairman David Calcutt QC, 1990, Cmnd. 1102,
London: HMSO, page 7
29
OECD, Protection of Privacy; Council of Europe, Convention for the Protection of Individuals with regard to
Automatic Processing of Personal Data, ETS No. 108, (Jan 28, 1981)
30
See Supra 22, 23; J.S. Mill, Principles of Political Economy, p. 306 (1970);
31
See Supra 14.

Page 5
Amersia, thus, violating right to privacy which is a part of right to life and personal
liberty guaranteed under Art. 21 of the Constitution.
1.2.7. In a much celebrated case of Ram Jethmalani & Ors. v. Union of India & Ors.32, it was
observed by the Honble Supreme Court that:
We understand and appreciate the fact that the situation with respect to
unaccounted monies
is
extremely grave. Nevertheless,
as
constitutional
adjudicators we always have to be mindful of preserving the sanctity of

constitutional values, and hasty steps that derogate from fundamental rights,
whether urged by governments or private citizens, howsoever well meaning they
may be, have to be necessarily very carefully scrutinized. The solution for the
problem of abrogation of one zone of constitutional values cannot be the creation of
another zone of abrogation of constitutional values (emphasis supplied).
Hence, it most respectfully submitted that, even if the information was shared, keeping
in mind the public good and welfare, the individuals right to privacy cannot be
sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic
problems such as unaccounted monies. It is the States first responsibility to promote
and protect human rights.33
1.2.8. Moreover, it is also submitted that the Convention nowhere mentions a system of checks
and balances for obtaining and sharing of information. It does not define clearly a
parameter as to whose information will be shared. It is thus, evident from the above that
no such procedure has been established by law which makes the sharing of information
by the Government of Britussia with the Government of Amersia unreasonable and thus
violative of right to privacy enshrined under Article 21.
32
2011 8 SCC 1.
U.N. Commission on Economic, Social and Cultural Rights, Statement to the Third Ministerial Conference of the
World Trade Organisation (Nov 26, 1999) UN Doc. E/C.12/1999/9, 6.
33

Page 6
1.3. THAT, ARBITRARY
DISCLOSURE OF
BANK ACCOUNTS
RESULTED IN THE LOSS OF PERSONAL
LIBERTY.
1.3.1. It is most humbly submitted that the expression 'personal liberty' used under Article 21
has been given a very wide and liberal interpretation by the Supreme Court.34 It means
the freedom of the individual to do as he pleases limited only by the authority of
politically organized society to regulate his action to secure the public health, safety, or
morals or of other recognized social interests. It is not used in a narrow sense but has
been used in Article 21 as a compendious term to include within it all those variety of
rights of a person which go to make up the personal liberty of a man.35 Personal Liberty
aims at freedom not only from arbitrary restraint but also to secure such conditions which
are essential for the full development of human personality.36
1.3.2. It is submitted that, in the instant case, the information of bank accounts of Amersian
citizens and PAOs having bank accounts in Britussia was shared in an arbitrary manner
by the Government of Britussia with the Government of Amersia. The result of this was
that the government of Amersia upon receiving many dossiers of information started to
leak information selectively of bank accounts held by its citizens/PAOs and their business
entities in Britussia to the Press. Some ministers in the Government of Amersia publicly
announced the names of their political and personal opponents whose names were listed
in the dossiers. Moreover, no investigations or any proceedings were initiated before
disclosing the information.37
1.3.3. It is also submitted that on account of the above mentioned facts the television channels
in Amersia ran continuous media trials of the persons whose names were selectively or
vindictively disclosed and created negative publicity for such individuals and their
businesses. There was hue and cry against such persons. Some political groups, NGOs,
34
Maneka Gandhi v. UOI, AIR 1978, SC 597.

Kharak Singh v. State of U.P. ,AIR 1963 SC 1295.
36
Ibid.
37
Compromis 9.
35

Page 7
and social groups held violent protests in front of residences and business establishments
of persons whose names were leaked and caused substantial damage to their property.
Certain fringe elements of the society even attacked such persons, their family members
and their business associates leading to several casualties.38
1.3.4. It is submitted that, Article 21, though couched in negative language confers on every
person the fundamental right to life and personal liberty 39 . This right has been given
paramount importance by our Courts. 40
The object of article 21 is to prevent
encroachment upon personal liberty by the executive, save in accordance with law, and
in conformity with the provisions thereof.41 Personal Liberty also includes the right to
socialize with members of one's family and friends.42
1.3.5. It is to be understood that before a person is deprived of his life or personal liberty the
procedure established by law must be strictly followed and must not be departed from to
the disadvantage of the person affected.43 In each case where a person complains of the
deprivation of his life or personal liberty, the Court in the exercise of its constitutional
power of judicial review, has to decide whether there is a law authorizing such
deprivation and whether, in the given case, the procedure prescribed by such law is
reasonable, fair and just, and not arbitrary, whimsical and fanciful. 44 Hence, it is
submitted that, procedure under which the information was exchanged under DTAA 45
were arbitrary, whimsical and fanciful, and thus caused loss of personal liberty as they do
not contain any provision for checking the credibility of the information to be shared
which is a typical instance of abuse of power and departure from the procedure
established by law.
38
Compromis 10.
Bhagwati, J. In Maneka Gandhi v. UOI, (1978) 1 SCC 248.
40
Kehar Singh v. UOI, (1989) 1 SCC 204.
41
Narinderjit Singh Sahni v. Union of India, (2002) 2 SCC 210, 237-38 ( 57).
42
Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167 ( 2).
43
Makkhan Singh Tarsikka v. State of Punjab, AIR 1952 SC 27.
44
Francis Coralie Mullin v. Union Territory of Delhi, Administrator, AIR 1981 SC 746 ( 3).
45
Article 26 of the DTAA.
39

Page 8
1.4. THAT, ARBITRARY DISCLOSURE OF BANK ACCOUNTS RESULTED IN THE LOSS OF BUSINESS.
1.4.1. It is humbly submitted before the Honble Court that, in the present case, due to the
arbitrary sharing of information of Amersian citizens and PAOs having bank accounts in
Britussia by the Government of Britussia with the Government of Amersia and the
leaking of information by the Amersian government to the press, the people whose names
were leaked have suffered a loss of business because after the disclosure media trials
were run against them, there were protests against their business establishments and
certain fringe elements also attacked their associates. All this created a negative publicity
of their business resulting in loss of business,46 which is akin to loss of livelihood of such
persons whose names were leaked to the media.
1.4.2. Two persons one Mr. Ashra Banbani and the other Mr. Sabeer Bechriwal completely lost
their business as their business establishments were closed and their personal assets were
either looted or destroyed.47 Thus their source of livelihood was finished resulting in the
infringement of their right to livelihood enshrined in right to life and personal liberty
under article 21 of the Constitution. It is submitted that in any organized society, right to
live as a human being is not ensured by meeting only the animal needs of man. It is
secured only when he is assured of all facilities to develop himself and is freed from
restrictions which inhibit his growth.48 The word life as employed by Article 21 takes
in its sweep not only the concept of mere physical existence but also all finer values of
life including the right to work and right to livelihood.49 This right is a fundamental
right guaranteed to all persons residing in India, citizens and non-citizens alike.50
46
Compromi 10.
Compromi 11 and 12.
48
Francis Coraile v UT of Delhi, AIR 1978 SC 597.
49
D. K. Yadav v J. M. A. Industries, (1993) 3 SCC 258.
50
Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988; David John Hopkins v. Union of India &
Ors., AIR 1997 Mad 366.
47

Page 9
1.4.3. It is submitted that Supreme Court in the case of Olga Tellis and others v. Bombay
Municipal Corporation and others51 has observed that:
An equally important facet of the right to life is the right to livelihood
because, no person can live without the means of living, that is, the means of
livelihood. If the right to livelihood is not treated as a part of the constitutional
right to life, the easiest way of depriving a person of his right to life would be
to deprive him of his means of livelihood to the point of abrogation.
1.4.4. It is in this context in which it was laid by Douglas J. in Baksey52, that, the right to work
is the most precious liberty that man possesses. It is the most precious liberty because,
it sustains and enables a man to live and the right to life is a precious freedom. It is
submitted that in the instant case, the Amersian citizens and PAOs having bank accounts
in Britussia lost their business/ livelihood due to protests and violence against them due
to the arbitrary sharing of information by the Government of Britussia without checking
the credibility of the same.
1.5. CONCLUSION FOR THE FIRST ISSUE:

In the light of the aforementioned contentions it is firmly established that the Government of
Britussia has violated various Fundamental Rights guaranteed under the Constitution of
Britussia to citizens of Amersia and PAOs by arbitrarily sharing their confidential information
with the Government of Amersia.
-x-x-x-x-x-x-
51
52
AIR 1986 SC 180 ( 32-33.).

(1954) 347 M.D. 442.

Page 10
2. WHETHER ARTICLE 26 OF THE DTAA WAS LIABLE TO BE STRUCK DOWN TO THE EXTENT IT
WAS BEYOND THE POWER OF THE
GOVERNMENT UNDER SECTION 90 OF THE INCOME TAX
ACT OF BRITUSSIA?
2.1. THAT ARTICLE 26(1)53 OF THE DTAA IS IN VIOLATION OF SECTION 90(1)(C) OF THE INCOME TAX
ACT OF BRITUSSIA.
2.1.1. It is most humbly submitted before the kind consideration of this Honble court that
Article 26(1) violates Section 90 (1) (c) as the terms of the Article 26 are in contravention
with the parent or enabling act which in the present case is Section 90 (1) (c), thus liable
to be struck down.54 That Article 26(1)55 pronounces:
The competent authority...
...in so far as the taxation thereunder is not contrary to the convention, in
particular for the prevention of fraud or evasion of such taxes.
Whereas, Section 90 (1) (c) of the Income Tax Act of Britussia states that:
For the exchange of information for the prevention of evasion or avoidance
of income tax chargeable under this act or under the corresponding law in force
in that country, or investigation of cases of such evasion or avoidance.
2.1.2. As the provisions of the DTAA for the exchange of information was in particular for the
prevention of fraud, whereas, the parent or enabling act provides for transfer of
information for prevention of evasion or avoidance of Income Tax provided under the
Act. Thus, the rule making authority in this perspective travels beyond the scope of the
enabling act, hence liable to be declared ultra vires.56
Article 26(1) of DTAA Exchange of Information The competent authorities of the Contracting States shall
exchange such information (including documents) as is necessary for carrying out the provisions of the Convention
or of the domestic laws of the Contracting States concerning taxes covered by the Convention, insofar as the
taxation thereunder is not contrary to the Convention, in particular for the prevention of fraud or evasion of such
taxes.
54
Delhi Transport Undertaking v. B.B.L. Hajelay, AIR 1972 SC 2452.
55
See Supra 53.
56
Additional District Magistrate (Rev.) v. Sri Ram, (2000) 5 SCC 452.
53

Page 11
2.1.3. Herewith the delegated legislation is challenged on the ground that it is ultra vires the
enabling Act57 as it is an accepted principle that the authority of the delegated legislation
must be exercised within the authority and the delegate cannot make a law which runs in
contravention with the principle of the enabling act. It is well settled that the rule making
powers conferred by the parent act does not enable the rule making authority to make a
rule which is inconsistent or repugnant to the enabling Act. If the rule cannot be
reconciled with the parent Act, it must be struck down.58
2.2. THAT PROVISIONS INVOLVING TRANSFER OF INFORMATION RELATING TO CAPITAL IS BEYOND THE
SCOPE OF SECTION 90 (1)(C) OF INCOME TAX ACT OF BRITUSSIA.
2.2.1. It is most humbly submitted before the kind consideration of this Honble Court that the
provisions relating to transfer of information involving capital goes beyond the scope
of Section 90 (1)(c). It is a settled principle that income does not include capital under the
meaning of income under Section 2(24). The same has been held in the case of Cadell
Weaving Mill Co. vs. CIT 59and was upheld by the Apex Court in CIT vs. D.P. Sandu
Bros. Chember (P) Ltd.60 Later the same was reiterated in a recent case of Vodafone
India Services Pvt. Ltd. v. Union of India and Ors.61 It was observed in the case of
Cadell Weaving Mills Co. inter alia that:
It is well settled that all receipts are not taxable under the Income tax Act.
Section 2(24) defines income. It is no doubt an inclusive definition. However, a
capital receipt is not income under Section 2 (24) unless it is chargeable to tax as
capital gains under Section 45.
2.2.2. It is further submitted that, as per the provisions of Article 26 (1)62 reads:
57
Wade, Administrative Law,(1998), p. 863.

Municipal Corporation of Greater Bombay v. Nagpal Mills & Anr., (1988) 2 (SCC) 466: AIR 1988 SC 1009.
59
249 ITR 265.
60
273 ITR 1.
61
Bombay High Court WP/871/2014.
62
See Supra 53.
58

Page 12
The competent authority of the contracting state shall exchange such

information (including documents) as is necessary for carrying out the provisions
of the Convention or of the domestic laws of the Contracting States concerning
taxes covered by this convention...
Moreover, Article 2 (2)63 of the DTAA reads as:
There shall be regarded as taxes on income and on capital all taxes
imposed on total income, on total capital, or on elements of income or of
capital...
Section 90(1) (c) specifically provides for transfer of information pertaining to income
tax chargeable under the Income Tax Act or the corresponding law prevailing in the other
country. Herewith, it is submitted that the transfer of information relating to capital goes
beyond the view of this DTAA as capital does not fall within the definition of income
within Section 2(24) of the Income tax Act. Thus, transfer of information relating to
capital or total capital would be beyond the scope of the parent or enabling act as it is a
delegated piece of legislation which is in excess of the powers conferred by the parent
act. Hence the Government of Britussia was wrong in sharing the information beyond
the scope of Art. 26.
2.3. THAT
THE PROVISIONS OF
ARTICLE 26
PROVIDE UNCANALIZED AND UNCONTROLLED POWER TO
64
THE COMPETENT AUTHORITY.
2.3.1. It is most humbly submitted before the kind consideration of this Honble court that, it is
an established doctrine of delegated legislation that if the subordinate authority keeps
Article 2(2) of the DTAA Taxes Covered There shall be regarded as taxes on income and on capital all taxes
imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the
alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as
well as taxes on capital appreciation.
64
Article 3 of DTAA General Definitions 1. (h) the term Competent Authority means:
(i) in the case of Amersia, the Central Government in the Ministry of Finance (Department of Revenue) or their
authorised representative;
(ii) in the case of Britussia, the Central Government in the Ministry of Finance (Department of Revenue) or their
authorised representative;
63

Page 13
within the powers delegated, the delegated legislation is upheld valid; but if it does not
the court will certainly quash it.65 The provisions of Article 26 provide uncanalized and
uncontrolled power to the competent authority due to the fact that the process of
exchange of information is left to the discretion of the competent authority. Such a
provision provides with the executive uncanalized and uncontrolled power to act on their
own accord in absence of any guidelines framed by the legislature.
2.3.2. It is apt to excerpt here an oft-quoted observation from Vasantlal Maganbhai

Sanjanwala v. State of Bombay & Ors. 66 which was affirmed in Devi Das Gopal
Krishnan & Ors. v. State of Punjab & Ors.67 :
"An over burdened legislature or one controlled by a powerful executive
may unduly overstep the limits of delegation. It may not lay down any policy at
all; it may declare its policy in vague and general terms; it may not set down
any standard for the guidance of the executive; it may confer an arbitrary
power on the executive to change or modify the policy laid down by it without
reserving for itself any control over subordinate legislation. This self effacement
of legislative power in favor of another agency either in whole or in part is
beyond the permissible limits of delegation. It is for a Court to hold on a fair,
generous and liberal construction of an impugned statute whether the
legislature exceeded such limits. But the said liberal construction should not be
carried by the Courts to the extent of always trying to discover a dormant or
latent legislative policy to sustain an arbitrary power conferred on executive
authorities. It is the duty of the Court to strike down without any hesitation any
arbitrary power conferred on the executive by the legislature."
2.3.3. As it has been demonstrated by the functioning of the agreement in Amersia, where due
to the agreement suffering from the vices of excessive delegation, providing the
65
Yasin v. Town Area Committee, AIR 1952 SC 115.

AIR 1961 SC 4: (1961) 1 SCR 341.
67
1967 SCR (3) 557.
66

Page 14
executive with uncontrolled and uncanalised power, led to selective revelation of names
grounded on personal and political vendetta or rivalry. Such a delegation is not only
abridging the basic function of the legislation, but, also posses two way threats. First one
being similar to the event which took place in the Amresia, such an incident can also
occur if the agreement continues to suffer from such vices. The second form of threat
could be in the form of business entities targeting each other due to the unspecified
provisions of the agreement
2.3.4. It is further submitted that a legislation which does not contain any provision which is
directly discriminatory may yet offend against the guarantee of equal protection if it
confers upon the executive or administrative authority an unguided or uncontrolled
discretionary power in the matter of application of the law.68
2.3.5.
It is most humbly submitted that per curiam Sudhir Chandra v. Tata Iron & Steel Co.
Ltd.69, Honble Supreme Court observed that:
our Constitution envisages a society governed by rule of law. Absolute
discretion uncontrolled by guideline which may permit denial of equality before law
is the antithesis of rule of law. Absolute discretion not judicially reviewable inheres
the pernicious tendency to be arbitrary and is therefore violative of Article 14.
Equality before law and absolute discretion to grant or deny the benefit of the law
are diametrically opposed to each other and cannot co-exist.
2.3.6. It is further submitted that, in Sitaram Vishambhar Dayal v. State Of U.P.70, Supreme
Court has settled its view that no articulate norms can be laid down to bring the provision
into the colour of excessive delegation. It totally depends upon the facts and
circumstances of each individual case and also the nature of power delegated and purpose
68
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75; Suraj Mall Mohta & Co. v. A.V. Visvanathasastri, AIR
1954 SC 545; District Registrar & Collector, Hyderabad v. Canara Bank (2005) 1SCC 496, 524-525 ( 57); Air
India v. Nargesh Meerza, (1981) 4 SCC 335: Municipal Committee, Patiala v. Model Town Residents Assn., AIR
2007 SC 2844 ( 57).
69
AIR 1984 SC 1064,1071: (1984) 3 SCC 369.
70
AIR 1972 SC 116.

Page 15
intended to be achieved. Further, it is an established doctrine of delegated legislation

that if the subordinate authority keeps within the powers delegated, the delegated
legislation is upheld valid; but if it does not the court will certainly quash it.71
2.3.7. It is most humbly submitted that the Supreme Court in catena of cases72 have even went
on saying that the vice of conferring unguided discretion on an administrative
authority, which offends against Article 14 because it empowers arbitrary action, is
akin to the vice of unreasonableness under Article 19 as well as excessive delegation or
abdication on the part of the Legislature. Thus it is submitted that the provisions
providing the executive with such unguided discretionary powers goes beyond the limits
of delegated legislation as it goes on to provide arbitray powers which is ultra vires the
Constitution.
2.4. CONCLUSION FOR THE SECOND ISSUE:
In the light of the aforementioned contentions it is firmly established that Article 26(1) of the
DTAA is in violation of Section 90(1)(c) of the Income Tax Act of Britussia, also provisions
involving transfer of information relating to capital is beyond the scope of Section 90 (1)(c) of
Income Tax Act of Britussia. Moreover, Article 26 provides uncanalized and uncontrolled power
to the competent authority. Hence, the Government of Britussia was wrong in sharing the
information beyond the scope of Art. 26 and the same is liable to be struck down to the extent it
is beyond the power of the Government under Section 90 of the Income Tax Act of Britussia.
-x-x-x-x-x-x-
71
72
Yasin v. Town Area Committee, AIR 1952 SC 115.

Kaushal P.N. v U.O.I., AIR 1978 SC 1457( 60-62); Avinder Singh v. State of Punjab, AIR 1979 SC 321 ( 9).

Page 16
3. WHETHER
THE
GOVERNMENT
INFORMATION CONSEQUENT
OF
BRITUSSIA
TO THE
WAS
VIOLATION
WRONG
OF THE
IN
SHARING FURTHER
SECRECY CLAUSE
UNDER
ARTICLE 26 OF THE DTAA?
3.1. It is submitted that article 26(2) of the Convention specifically mentions that information
received shall be treated as secret and it shall be disclosed only to persons or authorities
including courts or administrative bodies.73
Further as per Article 23(3) the authorities shall develop appropriate condition for
exchange of information regarding tax avoidance.74
3.2. However in the instant case the Government of Amersia having upon received many
dossiers containing information under the DTAA from the Government of Britussia started
to selectively leak information of bank accounts held by citizens of Amerisa and PAOs in
Britussia. Some ministers in the Government of Amersia publicly announced the names of
their political and personal opponents whose names were listed in the dossiers without even
initiating any investigations against them so as to determine whether they are guilty of tax
evasion or not.75
3.3. Based on above mentioned facts the television channels in Amersia ran continuous media
trials of the persons whose names were selectively or vindictively disclosed and created
negative publicity for such individuals and their businesses. There was hue and cry against
such persons. Some violent protests infront of residences and business establishments of
persons whose names were leaked and caused substantial damage to their property, also
Article 26 of DTAA Exchange of Information.
(2) Any information received by a Contracting State shall be treated as secret in the same manner as information
obtained under the domestic laws of that State, it shall be disclosed only to persons or authorities (including courts
and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of,
or the determination of appeals relation to, the taxes which are the subject, of the Convention
74
Article 26 of DTAA Exchange of Information.
(3) Such persons authorities shall use the information only for such purposes but may disclose the information in
public court proceedings or in judicial decisions. The competent authorities shall, through consultation, develop
appropriate conditions, methods and techniques concerning matters in respect of which such exchange of
information shall be made, including, where appropriate, exchange of information regarding tax avoidance.
75
Compromis 9.
73

Page 17
such persons,their family members and their business associates were attacked leading to
several casualties.76
3.4. It is further submitted that Mr. Ashra Banbani, a Citizen of Amersia but a Resident of
Britussia, whose name was also disclosed, lost all his family members in an attack on his
house in the capital of Amersia. He also suffered loss of business and property; also media
in Britussia harassed him and ran negative propaganda regarding his import businesses in
Britussia.
77
Government of Amersia also leaked information regarding Mr. Saber
Bechrival, a PAO having business interest in Britussia. Mr Saber Bechrival was a Resident
of a Third Country since a decade and was not having any taxable income in Amersia over
the last several decades. He also met the same fate as that of Mr. Ashra Banbani.78
3.5. It is submitted that, the Government of Britussia is shying away from taking any action
against the Government of Amersia in spite of the above mentioned facts because the
Governemnt of Britussia is more concerned about its political interest rather than the
interests of the citizens of Amersia and PAOs who are also under the protective umbrella
of right to life and personal liberty enshrined in article 21 of the Constitution.
3.6. It is also submitted that political expediency cannot be a ground for not fulfilling the
constitutional obligations inherent in the Constitution of India and reflected in section 90 of
the Act. The article confers power to lay down a law which is not contemplated under the
Act on the ground of political expediency, which cannot but be ultra vires. Any purpose
other than the purpose contemplated by section 90 of the Act, however bona fide it be,
would be ultra vires the provisions of section 90 of the Income tax Act. While political
expediency will have a role to play in terms of Article 73 of the Constitution, the same is
not true when a Treaty is entered into under the statutory provision like section 90 of the
Act.79
76
Compromis 10.
Compromis 11.
78
Compromis 12.
79
Union of India & Anr. v. Azadi Bachao Andolan & Anr., AIR 2004 SC 1107 : (2004) 10 SCC 1.
77

Page 18
3.7. Further, under the provisions relating to Exchange of Information, any information
received by a Contracting State shall be treated as secret in the same manner as information
obtained under the domestic laws of that Contracting State. Thus, the information received
under the provisions of DTAAs/TIEAs/Multilateral Convention is also subject to the
restrictions imposed through section 13880 read with section 28081 of the Income Tax Act,
1961. These provisions have been put in so that the taxpayers have confidence in the
system and are ensured that their sensitive financial information is not disclosed
inappropriately, whether incidentally or by accident.82
3.8. CONCLUSION FOR THE THIRD ISSUE:

In the light of the aforementioned conditions it can be established that, the Government of
Britussia was wrong in sharing further request from Government of Amersia consequent to the
violation of secrecy clause under Article 26 of the DTAA as the government of Amersia has
violated the secrecy clause which is evident from the fact that members of the Amersian
Government has disclosed information under DTAA to the press which has caused violence
against those people whose names were so disclosed.
-x-x-x-x-x-x-
4. WHETHER THE GOVERNMENT OF BRITUSSIA WAS WRONG IN SHARING THE INFORMATION

OF A NON RESIDENT?
Section 138 of Income Tax Act, 1961 Disclosure of information respecting assessees - Subject to certain
exceptions, no public servant shall furnish any information contained in any statement made, return furnished or
accounts or documents produced under the provisions of the Act, or in any evidence given, affidavit or depositions
made in the course of any assessment proceedings under the Act. (relevant portion only)
81
Section 280 of Income Tax Act, 1961 Disclosure of particulars by public servants
(1) If a public servant furnishes any information or produces any document in contravention of the provisions of
sub-section (2) of section 138, he shall be punishable with imprisonment which may extend to six months, and shall
also be liable to fine.
(2) No prosecution shall be instituted under this section except with the previous sanction of the Central
Government.
82
See Supra 79.
80

Page 19
4.1. THAT AMERSIA BRITUSSIA DTAA WAS ONLY BINDING ON THE RESIDENTS OF THE CONTRACTING
STATES.
4.1.1. It is humbly submitted before this Honble Court that, Article 183 of the DTAA sets the
personal scope of Agreement between the two Contracting States, i.e., Britussia and
Amersia, according to which the convention shall be binding on the residents of one or
both of the Contracting States only. The term Resident is defined under Article 4(1) in
following terms:
For the purposes of this Convention, the term "resident of a Contracting
State" means any person who, under the laws of that State, is liable to tax therein by
reason of his domicile, residence, place of management, place of incorporation or
any other criterion of a similar nature, and also includes that State and any local
authority thereof. This term, however, does not include any person who is liable to
tax in that State in respect only of income from sources in that State.84
4.1.2. The term resident is also defined under Income Tax Act, 1961 under Sec. 2(42) as
follows:
resident means a person who is resident in Britussia within the meaning
of section 685.
Thus, a resident is a person, if alternatively he:
a. Is in Britussia for a period amounting in all to 182 days or more in the previous year.
Article 1 of DTAA Personal Scope This Convention shall apply to persons who are residents of one or both
of the Contracting States.
84
Article 4(1) of DTAA.
85
Section 6 of DTAA Residence in India For the purposes of this Act,
(1) An individual is said to be resident in Britussia in any previous year, if he
(a) is in Britussia in that year for a period or periods amounting in all to one hundred and eighty-two days or more ;
or
(b) 43[* * *]
(c) having within the four years preceding that year been in Britussia for a period or periods amounting in all to three
hundred and sixty five days or more, is in Britussia for a period or periods amounting in all to sixty days or more in
that year.
83

Page 20
b. Is in Britussia for 60 days or more during the relevant previous year & has been in
Britussia for 365 days or more during 4 previous years immediately preceding the
relevant previous year.
4.1.3. Thus, deriving the meaning of resident from both the Article 4(1) of Amersia
Britussia DTAA and Sec. 2(42) and Sec. 6 of the Income Tax, 1961, it is hereby humbly
submitted that, the provisions of the said DTAA were only applicable to persons who
were the residents of either Amersia or Britussia, while any person who is non-resident
in both the countries fall outside the scope of DTAA and the provisions of DTAA shall
not be binding upon him. Hence, what is really relevant to see is whether or not the
person in question is the resident of the contracting state,86 and merely having business
interest in a state does not qualifies a person to become a resident of that state.
4.2. THAT
THE
GOVERNMENT
OF
BRITUSSIA
WAS NOT BOUND TO SHARE THE INFORMATION OF THE
NON-RESIDENTS.
4.2.1. The counsel has already stated above that, the provisions of the Amersia Britussia
DTAA were applicable only to residents of either contracting states. Hence, Article 26
which provides for exchange of information between the contracting states, for purposes
stated under Artcile 26(1), cant be made applicable to the non residents and
consequently the information of non residents cannot be exchanged under DTAA, and
for the same Government of Britussia is not bound.
4.2.2. As per the Exchange of Information provisions of the DTAA, the Competent Authorities
shall exchange information as is foreseeably relevant for administration and
enforcement of the domestic laws concerning taxes.87 It is necessary that in the request
made, the foreseeable relevance of the information for the administration and
86
87
Hindustan Petroleum Corporation Ltd. v. ADIT, (2010) 130 TTJ 518 (Mum.)
OECD, OECD Model Tax Convention and its Commentary: Update to Article 26, Organisation for Economic Cooperation and Development (Jan 10, 2015, 12:21pm), http://www.oecd.org/ctp/exchange-of-taxinformation/120718_Article%2026-ENG_no%20cover%20%282%29.pdf.

Page 21
enforcement of Tax Laws is demonstrated. Hence, it is the duty of the requested state to
look that information is not sought as a tool to engage in fishing expeditions or to
request information that is unlikely to be relevant to the tax affairs. The provisions for
Exchange of Information do not obligate the requested State to provide information in
response to requests that are fishing expeditions88, i.e. speculative requests that have
no apparent nexus to an ongoing specific inquiry or investigation.89
4.2.3. It is therefore humbly submitted that, information requested by the Amersian
Government was merely a device to satisfy its tussle with political and personal
opponents and it only requested the information by the way of fishing expeditions and
as such there was no foreseeable relevance of the information requested for the
administration and enforcement of Tax Laws. This ipso facto becomes more clear when
after receiving many dossiers containing information under the DTAA from the
Government of Britussia, Government of Amersia started selectively leaking information
of bank accounts to the Press, moreover, some ministers in the Government of Amersia
also publicly announced the names of their political and personal opponents whose names
were listed in the dossier received, even before any investigation or other proceedings
could be initiated.90 Hence, it was not obligatory on the part of Government of Britussia
to share the information of persons who are not the residents of either of the contracting
states.
4.3. CONCLUSION FOR THE FOURTH ISSUE:

In the light of the aforementioned contentions it is firmly established that Amersia Britussia
DTAA was only binding to the residents of the contracting states and was not applicable to
The examples of such fishing expedition would include, for instance, request for details of all the bank accounts
of all residents of the requesting State maintained in the banks of the requested State or details of all shareholders
resident of requesting State of a company located in requested State. Hence, the requests made should be specific
89
See Supra 74.
90
Compromis 9.
88

Page 22
persons who were neither the Residents of Britussia nor Amersia, and hence, it was not
obligatory on the part of the Government of Britussia to entertain such requests and share their
information.
-x-x-x-x-x-x-

Page 23
PRAYER
Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited, it
is most humbly prayed before this Honble Supreme Court, that it may graciously be pleased to-
1. Allow the instant public interest litigation.

2. Issue the writ in the nature of mandamus to restrain the Government of Britussia from
sharing the personal data of citizens of Amersia and Persons of Amersian origin having bank
accounts in Britussia, with the Government of Amersia.
3. Hold the provisions Article 26 of AMERSIA-BRITUSSIA DTAA which are beyond the
powers of s.90 of the Income-Tax Act of Britussia as ultra vires.
And pass any other order in favor of the Petitioner which this Court may deem fit and proper in
the circumstances of the case.
All of which is most humbly and respectfully submitted.
Sd/Counsels for the Petitioner

Page XII

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ULC 03

IN THE HONBLE SUPREME COURT

WRIT PETITION NO: _____/2015

--IN THE MATTER OF--

XIX ALL INDIA MOOT COURT COMPETITION, 2015

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

1. Whether Government of Britussia was violating Fundamental Rights of Citizens of

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

3. Whether Government of Britussia was wrong in sharing further requests from

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

1. The Constitution of India, 1950.

LIST OF ABBREVIATIONS AND ACRONYMS

All India Reporter

Double Taxation Avoidance Agreement

Harward Law Review.

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

Supreme Court Cases

BOOKS AND COMMENTARIES

XIX ALL INDIA MOOT COURT COMPETITION, 2015

3. http://www.mca.gov.in (browsed on 22/12/14, 08/01/15, 18/01/15)

XIX ALL INDIA MOOT COURT COMPETITION, 2015

25. Kaushal P.N. v U.O.I., AIR 1978 SC 1457(paras 60-62)..16

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

Article 32 in The Constitution Of India, 1950-

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

Conventions/Agreements (popularly referred to double taxation avoidance agreements)

XIX ALL INDIA MOOT COURT COMPETITION, 2015

ISSUES FOR CONSIDERATION

GUARANTEED UNDER THE

GOVERNMENT UNDER SECTION 90

INFORMATION CONSEQUENT TO THE VIOLATION OF THE SECRECY CLAUSE UNDER ARTICLE

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

ISSUE 1: WHETHER GOVERNMENT

GUARANTEED UNDER THE

GOVERNMENT UNDER SECTION 90 OF THE INCOME TAX ACT

XIX ALL INDIA MOOT COURT COMPETITION, 2015

INFORMATION CONSEQUENT TO THE VIOLATION OF THE SECRECY CLAUSE UNDER ARTICLE 26 OF

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

CITIZENS OF AMERSIA AND PAOS2 GUARANTEED UNDER THE CONSTITUTION?

NOT PROVIDING THE

OF BEING HEARD BEFORE SHARING THE

INFORMATION IS VIOLATIVE OF FUNDAMENTAL RIGHTS GUARANTEED UNDER THE CONSTITUTION.

Persons of Amersian Origin.

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

N.C.C.B. v. Ajay Kumar, AIR 1994 SC 39 ( 5).

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

the fundamental right of a person to be heard shall be regarded as arbitrary and in

(2007) 6 SCC 668 ( 28, 37 &38).

MEMORANDUM ON BEHALF OF THE PETITIONER

XIX ALL INDIA MOOT COURT COMPETITION, 2015

ARBITRARY DISCLOSURE OF BANK ACCOUNTS WITH PROPERLY ACCOUNTED FUNDS