The advent of e-commerce means of trading has accelerated the trend for business records to be held electronically. Keeping in view with change in method of trading, the central board of revenue has made the legal requirement for business for tax reasons that if they wish to store record electronically they have to seek specific permission from taxing authorities for doing so. The approval is given subject to conditions specified by Central board of Revenue. Indeed, it is possible that some traders without fulfilling the legal requirement may be already storing records electronically without CBR approval. In current conditions the need for CBR approval is must for the storage of records electronically and it may become outmoded of those records which are kept at remote server or out taxing jurisdiction. For effect tax administration and removal of record keeping requirements, processes and methodology of auditing used to store records electronically, Central board of revenue should promulgate acceptable standards of electronic record keeping for tax purposes. Legislation is urgently required to effect the change has means of transaction by advancement of technology should be considered urgently.
Electronic commerce and the abuse of Data
Does electronic commerce pose threat to the fair record keeping requirement? Personal databases of customer information allow businesses to abuse their database to evade the taxation. Problems are further aggravated when that company chooses to share the data with someone to whom they are not falling under tax jurisdiction of Pakistan or kept are remote server. We cannot say that misuse and tampering of personal and companies?record keeping are not something that is limited to electronic commerce. A current phobia about electronic commerce record keeping requirement is international issue for international taxing authorities. When we more probe into matter of e-records, a question cross our mind, why should information or the online trading of web sites regarding buying preferences be treated so differently? The disturbing fact about buyers is that they have been designed to operate without the user knowing that they are subject to imposition of taxation, they are there thus, could be said to be the tax payers.
The database of record as kept in cookies is tiny pieces of data which are sent by web servers and which can be placed on the user's system for later retrieval. These cookies are used without any intention of misuse or tempering of record. There are various methods are used to find out if a visitor to a web site has been there before and thus show customized information. However, cookies placed viewer computer with malicious JavaScript or other code or may be designed in such a way as to temper or misuse the database to transaction and to hide the source of transaction for taxing authorities. These cookies can be disabled, but this has implications for interaction with the web site allowing them to hide the main streams of data base of web site.
If taxing authorities do not have control over the collection and auditing of the personal or company’s data base, then electronic commerce will facilitate the evasion of taxation. Although, several methods are used for tempering the database and to combat these trends CBR need to advance administrative power.
Hosting of database in remote Server
The record can be hosting at any jurisdiction, and application of retention and maintenance of record often arise legal issues which could only solved according prevailing laws of the web hosting sites.
The sale tax only make it compulsory for the maintenance of the record at the business premises or registered place in Pakistan of all records of sellable transaction as provision of sale tax runs as follows;
“A registered person making taxable supplies shall maintain and keep at his business premises or registered office in English or Urdu language the following records of goods purchased and supplies made by him or by his agent acting on his behalf in such form and manner as would permit ready ascertainment of his tax liability during a tax period. ?br />
But there is no specific statutory provisions are available for defining issues mentioned above.
Lack of legislative embodiment of record keeping
There must be appropriate legislation embodiment for record keeping and maintenance of the record of web server, if the construction of statutory are not available that could provide ample opportunity for the tax payer to avoid the taxes.
The record keeping in electronic record only kept in net place within the premises of the business that can be easily accessible by the tax officer but real issue arise for ascertaining the taxable record of the sellable goods hosted in remote web server, Just look at provision of sale tax act,
“…The Board may, by notification in the Official Gazette, specify for any class of taxable persons registered under this Act to use such electronic fiscal cash registers as are approved by the Board in the manner as may be prescribed .?br />
There is liberal construction of the statutory provision of sale tax in subsection (3) in which it has confirmed the power to CBR to prescribe in such form and manner for keeping electronic data, “where a person who is required to maintain records under this Act may keep the record on electronic data in such form and manner as may be approved by the Board .?This construction of statute can not meet the legislative requirement for keeping record of remote server; here must be specific rules for keeping the records as to avoid legal issue of collection taxes.
Retention and destruction of Electronic Records
There must be substantive provision, which could frame time and limitation in which the electronic record could be kept. Although the electronic records can be kept for more than one form but the application of the substantive provisions for the retention of record are difficult to implement.
The production of electronic record for adjudication
There are legal stands in the way for justice adjudication of legal issues is production of record before the courts, the way these records can be placed and who is going to certify the electronic record? The legislative construction of statute must provide the legal framework for resolving these legal issues so that just adjudication can be pronounced for settlement of e-records disputes.
Authentication of database
There must be some authority which could certify the record kept by the tax payer, the establishment of authenticated authority is an essential for authentication and verification of records, no certification body has not yet established, although it has been proposed in Electronic Transaction ordinance 2002.
Standard for maintenance of records
The must be minimum standard for the protection of records, the types of software used should be used? What type of measures should be taken for maintenance and destruction of e- records? The standards of liable must also be described in appropriate form so that the records can be kept appropriate electronic forms.
The writer is an advocate of High Court and practicing immigration and corporate laws in Pakistan since September 2001. He is a self employed and pioneer in research on electronic commerce taxation in Pakistan. His articles were published widely in the critical areas of cyber crimes, electronic commerce, e-taxation and various other topics. He wrote LL.M thesis on titled “Legislation of electronic commerce taxation in Pakistan?in which he provided comprehensive legal proposals for statutory reconstruction of tax laws for purpose of imposition of taxation on e-business in Pakistan. Currently he is conducting is research on topic ‘Electronic commerce taxation: emerging legal issues of digital evidence?