Professional Documents
Culture Documents
Get a detailed insight into the concept of GAAR General Anti-Avoidance Rules; its
meaning and importance.
Evaluate and understand the provisions applicable to GAAR under the Income Tax Act.
Critically evaluate the concept of GAAR and consider the recommendations as per the
Second Draft Report on General Anti-Avoidance Rules submitted by Dr.
Parthasarathi Shome Committee (Report)
RESEARCH METHODOLOGY
This research is doctrinal in nature. Secondary and Electronic resources have been largely used
to gather information and data about the topic.
Books and other reference as guided by Faculty of the Corporate Taxation, have been primarily
helpful in giving this project a firm structure. Websites, dictionaries and articles have also been
referred.
INTRODUCTION
Countries impose taxes of various types with the objective of raising revenue for Government
spending. Taxpayers may be expected to minimize their tax liabilities by arranging their affairs in
a manner that is termed tax efficient i.e. through tax mitigation. This does not include tax
evasion. It has been universally accepted that tax evasion through falsification of records or
suppression of facts is illegal. Tax reduction through legal means, on the other hand, is
increasingly considered a matter of right by taxpayers. The courts also tend not to frown upon
this emergent approach of tax payers. This could perhaps be considered a paradigm shift in the
approach towards taxability, and has given rise to the grey area of tax avoidance which is
perceived by tax authorities as strictly legal in form but perhaps not in substance i.e. a business
arrangement to avoid tax may not reflect its embedded legislative intent.
The rise of the Indian economy in past two decades has been one of the most impacting events to
occur in the country post its independence from its colonial rulers. One of the most significant
markers of this growth has been the resilience of the economy to external pressures and troughs.
The Indian economy has been relatively unscathed in the aftermath of the global financial
meltdown of 2008. The country has seen a massive rise in gross domestic production (GDP)
and consequently per capita incomes have also risen across the board.
The Indian economy no longer functions as a singular isolated entity, in the globalized era that
exists today cross border trade and transactions are the norm rather than the exception. In such a
circumstance organizations are more than likely to move operations to countries where suitable
conditions exist for such businesses to flourish.
Such movement of business and consequently profits outside India is not looked in a good vein
by the government. Various authorities, have, therefore, felt that tax reduction through unethical
means should not be allowed, particularly when headline rates of tax have been significantly
reduced. It is therefore, in the interest of safeguarding the interests of revenue that the General
Anti Avoidance Rules (GAAR) were proposed by the Honourable erstwhile finance minister
3
The only true solution to avoidance is to have a much more principle-based tax system which
allows tax payers to operate with a level of certainty that is required for businesses to function
and grow.
For a long time Revenue has fought tooth and nail to prevent and suppress the ill of tax
avoidance but has failed to stop it despite having specific avoidance measures in its hand. But
with introduction of the Direct Taxes Code Bill, 2010 Legislature has proposed various genuine
measures in the domestic tax laws to tackle the problem of tax avoidance. One of the many
measures proposed is General Anti-Avoidance Rule (GAAR) under which a transaction can be
nullified by the concerned authorities if they are of the opinion that the central motive of
the transaction is to obtain tax benefit and allowing the transaction will violate object and
purpose of applicable tax laws.
To ensure that the guidelines to be notified would be better understood by both the
taxpayers and the income-tax department.
ii.
iii.
iv.
4 Arkay & Arkay, Chartered Accountants, GAAR: Past, Present & Future, available at
http://www.moneycontrol.com/news_html_files/news_attachment/2013/GAAR_Web.pdf
5
Evolution
available
at
6 Graham Aaronson QC, GAAR study: a study to consider whether a general anti-avoidance rule should be
introduced
into
the
UK
tax
system,
11
November
2011,
http://www.hmtreasury.gov.uk/d/gaar_final_report_111111.pdf
Further, in accordance with the enlarged definition of the test of lack of commercial substance,
it would also be necessary for the taxpayer to pass certain further tests such as: whether there is a
significant effect upon the business risks or net cash flow of the concerned parties, the test of
substance over form, whether the arrangement involves round trip financing or any
accommodating or tax indifferent party or any element having effect of offsetting each other and
so on.
Such an arrangement would be regarded as Impermissible Avoidance Arrangement, and the
CIT would have the power to invalidate the arrangement and determine the consequences thereof
under the Code with exceptionallywide powers.
order. The remedy available to the taxpayer is to file objections before the DRP consisting of
three CITs. The DRP, after following the appropriate procedure, is required to decide the matter
within a period of nine months and give appropriate directions to the AO who, in turn, is required
to pass the final assessment order based on these directions. The taxpayer can file an appeal
before the Income Tax Appellate Tribunal (ITAT) against the order. Considering past experience,
the DRP should be made independent and should operate on the lines of ITAT to provide a real
and effective remedy to the taxpayer. This will instill confidence amongst the tax payers,
domestically as well as globally. Such a mechanism will also help in keeping India as a
competitive destination for attracting foreign investments.
Once the CIT passes an order under the GAAR provisions, he is also required to send a copy to
the CIT having jurisdiction over the other party involved in the arrangement. The other CIT will
then proceed against the other party underthe GAAR provisions. The other CIT may again
independently examine the same arrangement. In a given situation, the other CIT may come to a
different conclusion in relation to that other party.
may follow under the Code. Similarly business profit can be recharacterised as royalty or fees for
technical services and taxed in India in the hands of a non-resident even in the absence of a
Permanent Establishment (PE). Unless judiciously exercised, these actions can create issues in
the home country of a non-resident taxpayer especially regarding characterisation of a genuine
income transaction, especially where India has entered into a tax treaty with the other country.
The Code also provides for overriding of tax treaty provisions where the GAAR is applied under
the Code.
12
ANALYSIS
OF
PROVISIONS SECTIONS 95
SECTION 144-BA
OF THE INCOME
TO
102
AND
TAX ACT
The general tendency witnessed in matters where there is any paradigm shift in the fiscal policy
of a country is that unless the move is aimed to directly benefit tax payers, irrespective of the
long term results sought, it is always viewed with skepticism - the insertion of GAAR into the
statute books serves as no exception to this rule. Therefore, the primary aim of the administration
at this juncture must first be to clarify the intent and purpose of such a move and take the subject
into confidence, else counter-productive results will be a certainty. It is the objective of this
section of the paper to weigh the intricate objectives of GAAR against the provisions as they
stand incorporated to critically assess the feasibility of implementing this fiscal instrument.
owing to stakeholder pressure, was delayed by another year, i.e. applicable from assessment year
2014-2015, through a circular issued by the Finance Ministry.11
14
The old debate as to where the Act' includes even Double Taxation Avoidance Agreements
(DTAAs) that the government enters into with other countries in its executive capacity would
have to be reopened and depending on the answer to that question, whether or not DTAA would
be subject to the overriding powers of GAAR would have to be decided in the light of section 90
of the Income Tax Act. It has been consistently held that, 13 DTAA become part of the municipal
law once enacted and that such Agreements, when in conflict with the domestic law, must
generally be given effect to, overriding the disadvantage to the assessee as contained in the
statute.14 If the contrary view is taken, it would not be a correct reflection of the intention behind
concluding such Agreements.15
With these observations having been made, the scope and legitimacy of unilaterally disallowing
the benefits conferred by a Treaty provision by one of the Contracting States may be deliberated
upon. There is some justification to such application to be found within the Commentaries to the
OECD Model Convention, as has also been practiced by some countries. Based on purposive
interpretation of the treaty provisions, certain countries disallow treaty benefits under the plea of
treaty abuse, calling them unintended benefits'. This argument is also sought to be sustained as a
logical interpretation resulting from the construction of Conventions in good faith.16
However, this method of interpretation is not without opposition and hence, as an intermediary
measure, the report of the expert committee has recommended a view that where the treaty itself
has anti-avoidance provisions, such provisions should not be substituted by GAAR provisions
but where such anti-abuse provisions are absent, GAAR may be invoked.
Additionally, with specific reference to India's treaties with Mauritius and Singapore, particularly
Mauritius, the Committee's report suggests that until the capital gains tax has been done away
with, the Revenue must honour Circular 789 and the Residence Certificate issued by the
Government of Mauritius must be accepted as evidence on the point of genuineness of the
13 Azadi Bachao Andolan v Union of India, - (2003-TII-02-SC-INTL).
14 Commissioner of Income Tax v Visakhapatnam Port Trust, - (2003-TII-14-HC-AP-INTL).
15 Commissioner of Income Tax v Davy Ash more India Ltd., -(2003-TII-26-HC-KOL-INTL); Leonhard Andhra
And Partner, Gmbh v Commissioner of Income Tax, -(2003-TII-94-HC-KOL-INTL)
residence status of an entity. In the humble view of the authors, this may run contrary to the
intentions of introducing GAAR in the first place and will work against the principle of equity in
taxation. Such a move if accepted will imply that a TRC is enough to override GAAR provisions
and would abruptly end one of the most laudable objectives of the rules as envisaged in the
Budget that of plugging a loophole which foreign institutional investors exploited to avoid
paying capital gains tax in India.17
One, it may be pointed out that the original version of GAAR as it appeared in the Direct Tax
Code of 2009 and in 2010, the purpose test required that the main purpose of the arrangement
was to obtain tax benefit. However, the present provision has enlarged the scope of the
definition to include any arrangement where the main purpose or one of the main purposes is
to obtain tax benefit, thereby diluting the purpose test and leaving room for uncertainty.
Two, sub-sections 1(b) and (c) suggest ample room for discretion on the part of the tax
official in determining what constitute misuse or abuse' under the Act and what may be
termed as lack of commercial purpose', considering the fact that the section empowers the
17 Supra note 12
16
authority to even question a transaction where the sole purpose might not be a tax benefit but
still may be an incidental consequence.
Fourthly and finally, subsections 1(b) to (d), as pointed out previously, refer to uncertain
concepts and hence judicial tests evolved to check abuse may be used as a referral point.
Particularly, established principles developed under tests such the Business Purpose Rule', 18
Sham transaction Rule',19 and the Doctrine of wrong characterization'.20
Section 97 as it stands presently incorporated under the Act, reflects with approval the substance
over form doctrine under subsection 1(a). This power of the authority to declare impermissible
the substance or effect of the arrangement as a whole when it is inconsistent or significantly
differs with its individual steps or form, read along with the powers vested under section 98 1
(a), which may be invoke to disregard, recharacterise or combine any step(s) under an
impermissible agreement, is consistent with the practice in certain countries like Canada, Japan,
USA and the UK.21
The other criteria laid down for categorizing an arrangement as impermissible are:
Section 97 (1) (b) if it involves:
(i)
(ii)
(iii)
(iv)
a transaction which is conducted through one or more persons and disguises the
value, location, source, ownership or control of funds which is the subject matter of
such transaction; or
(v)
Section 97 (1) (c) when it involves the location of an asset or of a transaction or of the
place of residence of any party which is without any substantial commercial purpose
other than obtaining a tax benefit for a party.
Finally, Section 97 (4) specifies that the period of the transaction, the taxes that may be paid
under it directly or indirectly and the existence of an exit route created are not to be treated as
relevant factors while determining if an arrangement lacks commercial purpose or not. As
recommended by the committee, it must necessarily be clarified through legislative amendment
that factors (i) to (iii) in Section 97(4) of the Act are, instead of being irrelevant, not sufficient
21 Roy Rohatgi, Basic International Taxation, Vol.2, 2 nd Ed., Taxmann at 149. and as adopted in cases such
as Gregory v Helvering (Helvering) and IRC v Ramsay (Ramsay).
18
for an arrangement to be excluded from the commercial substance test but may be relevant in the
consideration of other aspects of GAAR. If the contrary view is taken, a dangerous scenario
would arise where even bona fide transactions might be unnecessarily hit by the Act.
Critically appraising the methods that may be employed to arrive at an impermissible
arrangement and the consequences of such a declaration as contained in Section 98 and the
treatment of an accommodating and connected party under Section 99 reveal two short comings.
One, concepts such as the ones contained in Sections 98 and 99 are very specific and involve
multiple dimensions, both on the domestic and international fronts. Therefore, the officials must
receive in depth training and practical exposure in such type of transactions before being allowed
to judge them. Two, against these requirements and an honest analysis of the present tax system
which is not equipped with the adequate infrastructure, man power or transparency, it is doubted
whether the Indian tax administration is equipped to handle such complex issues at this stage.
Lastly, Section 100 states that chapter shall apply in addition to, or in lieu of, any other basis for
determination of tax liability. Section 101 mandates that the provisions of the chapter must be
applied in accordance with any guidelines issued from time to time by the Government on the
matter. Section 102 lays down the definitions for various terms used within the chapter. As the
expert committee has urged, the term associated persons' as defined under Section 103(3)(a)
must be put in line with the already existing definitions Section 92A of the Act to avoid
multiplicity of interpretations.
19
AVOIDANCE
OR
EVASION? A TIMELINE
OF
JUDICIAL
PRONOUNCEMENTS
Overview
A close perusal of international taxation jurisprudence will reveal that there has been
considerable judicial debate on the aspects of tax planning, mitigation, avoidance and evasion.
While a series of decisions across the world asserted the right of the subject to so dispose of his
capital and income as to attract upon himself the least amount of tax, there were certain other
intermediate ones which pointed otherwise.22 That avoidance of tax is not evasion and it carries
no ignominy with it, for it is sound law, not bad morality, for anybody to so arrange his affairs as
to reduce the brunt of taxation to a minimum' was perhaps most emphatically stated by the
English courts and was also one of the most predominant views followed by other national
courts.23 In the context of payment of tax, evasion' necessarily meant to try illegally to avoid
paying tax'; therefore, tax planning' was not evasion 24 and the subject cannot be changed
ignoring the legal position and regarding the substance of the transaction', the courts in England
reiterated.25 However, this position was soon to change with the advancement of InterGovernmental Tax Treaties with Limitation of Benefit [LOB] clauses and new mechanisms like
Specific Anti Avoidance Rules [SAAR] and General Anti- Avoidance Rules [GAAR] being
incorporated into domestic laws. Therefore, any discussion of such later tools like GAAR,
contemplated and designed to preserve tax bases, will be incomplete without an analysis of the
judicial opinion prior to or contemporaneous with their enactment. This section attempts to trace
the time line of such judicial thought, simultaneously providing for critical analysis of selected
cases.
22 Duke of Westminister v IR, 19 TC 490, 511, 520 (HL) [Duke]; CIT v Abhayananda Rath [Rath] 255
ITR 436.
23Per Jagadisan J, Aruna v State of Madras , 55 ITR 642, 648. Viscount Simon LC in Latilla v IR, 11
ITR Suppl 78, 79 (HL), and Greene MR in Howard v IR, 25 TC 121, 134, 10 ITR Suppl 90 (CA).
24 Supra 1
25 IR v Wesleyan Society , 16 ITR Suppl 101(HL); Provident Inv v CIT, 24 ITR 33, affirmed in 32 ITR
190 (SC)
20
26 (19 TC 420)
27 Bank of Chettinad Ltd. v CIT (8 ITR 522, 526, followed in Chockalingam v CIT, 9 ITR 278.)
28 CIT v Keshav Lal Patel (55 ITR 637, 642.), CIT v Motors and General Stores Ltd. - (2002-TIOL-820-SC-ITLB) and in CIT v Kharwar - (2002-TIOL-703-SC-IT).
29 Mcdowell v CTO - (2002-TIOL-40-SC-CT) followed in Workmen v Associated Rubber Ltd., 157 ITR
77 (SC), Neroth v CIT, 166 ITR 418 and CIT v Minal, 167 ITR 507.)
30 Ramsay v IR (54 TC 101) and IR v Burma Oil (54 TC 200. ) and Furniss v Dwason (55 TC 324. ).
21
Justice Ranganath Mishra, speaking for the majority, stated that tax planning may be legitimate
as long as it is within the contours of law. Colourable devices cannot be part of tax planning and
it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax
by resorting to dubious methods. However, Justice Chinnappa Reddy went one step further and
held that the Westminster principle was dead in England and that its ghost had to be done away
with. This observation was soon defeated when the English appellate courts reiterated the
Westminster principle in several subsequent cases.31
Justice Chinnappa Reddy's decision is on two grounds 32 that it one, diminishes considerably the
thin line that separates tax avoidance from evasion and two, that it was not consistent with the
correct interpretation of the English law on the subject as it existed then. Soon after the 1985
judgment, the opposition to Chinnappa Reddy J's solitary extreme view was seen in the form of a
lethal retort by Justice Sabyasachi Muhkarji's 33 when he emphatically stated that no amount of
moral sermons would change people's attitude to tax avoidance and when the court observed
that one should avoid subverting the rule of law. 34 As a matter of law, the Supreme Court
reiterated in these later cases that where the true effect of a transaction is clear, the appeal to
discourage tax avoidance was not a relevant consideration.
Aftermath
The correct legal position with regard to tax mitigation post Mcdowell 's were attempted to be
clarified in several decisions of the Madras High Court35 and of the Gujarat High Court36,where
it was held that the 1985 decision does not hit tax planning but only looks down at colourable
devices.
31 Mac Niven (Inspector of Taxes) v Westmorland Investments Ltd [(2001) 1 All ER 865]
32 Kanga, Palkhivala and Vyas, The Laws and Practice of Income Tax, Vol.1, 9th Ed., Lexis Nexis
Butterworths.
33 CWT v Narottam, 173 ITR 479
34 Union of India v Playwood Electronics, 184 ITR 308, 318
35 Valliappan v. ITO 170 ITR 238, 280-286
36 Banyan and Berry v. CIT 222 ITR 831, 850
22
23
CONCLUSION
24
India - The country whose growth story has been and will continue to be the focal-point of the
21st century, along with a couple of other nations. With the increasing globalization, upsurge in
cross-border transactions and profound capital inflow, India is all set to occupy the center-stage
in a decade or so as one of the ideal locations for large investment. However, with a view to
address the growing concerns of Revenue Authorities (RA) over the use of sham structures to
make investments in India solely to obtain tax benefits/avoid tax and to codify the judicial
doctrines which partly-prohibited the foregoing tax evading scheme, the Finance Act of 2012
introduced GAAR vide the inclusion of Chapter XA to the IT Act, 1961.
On an overall impression of GAAR, it seems to be a mixed bag with its fair share of positives
and negatives. Although one cannot mainly argue against the merits of GAAR and the intent with
which it is enacted, there needs to be unmistakable direction and clarity in its implementation. In
order to ensure the same, the government appointed an expert committee headed by
Parthasarathy Shome. A draft report of the recommendations made by Parthasarathy Dr. Shome
Committee was released recently.
Thus, GAAR is a dynamic concept which comes under the ambit of corporate tac=xation and is
applicable in the Indian situation.
REFERENCES
25
http://www.claonline.in/DisplayArticle.aspx?
ID=MzQzNQ==&FileName=MjAxMl8xNDIuaHRt
Kanga, Palkhivala and Vyas, The Laws and Practice of Income Tax, Vol.1, 9th Ed., Lexis
Nexis Butterworths.
Graham Aaronson QC, GAAR study: a study to consider whether a general antiavoidance rule should be introduced into the UK tax system, 11 November 2011,
http://www.hm-treasury.gov.uk/d/gaar_final_report_111111.pdf
Price Waterhouse Coopers, Removing the Fences: Looking Through GAAR, February
2012 available at http://www.pwc.in/assets/pdfs/publications-2012/pwc-white-paper-ongaar.pdf
www.finmin.nic.in/the.../dept.../Draft_GAAR_GuidelineITAct1961.pdf
CASE LAWS
2003-TII-02-SC-INTL
INTL
2003-TII-14-HC-AP-INTL
Ramsay v IR 54 TC 101
Vodafone International Holdings B.V. v. Union of India Appeal No. 733 of 2012.
27