We know that tax is a compulsory contribution to state revenue, levied by government on worker’s income and business profit, or added to the cost of some goods, services and transactions.

It a portion or sum of money demanded by government to support facilities or for services provided by it to the taxpayers. The tax is demanded by the government from taxpayers in lieu of resources used by taxpayers in generating income of the country.

Wikipedia Says: A tax is a compulsory financial charge or some other type of levy imposed upon a taxpayer by a governmental organization in order to fund various public expenditures.

Taxation: is an act of imposing tax and the fact of being taxed. Taxation is the system by which a government takes money from people and spends it on things such as education, health, and defence. Taxation is the amount of money that people have to pay in taxes.

The Government, whether Central or State imposes taxes on citizen to finance their activities by imposing various laws and procedures. The laws, rules and regulations through which government is collecting taxes provides some reliefs, deductions and of course there are some loops holes and persons are allowed to plan their transactions within rules and regulations to save tax. The tax planning is allowed by the government and not tax avoidance and evasion.

Tax Avoidance is one of the major concerns across the world. Different countries framed different rules to minimise such tax avoidance. Such rules in simple terms are known as General Anti-Avoidance Rule (GAAR). Thus GAAR is nothing but the set of rules ratified so as to check the avoidance of tax.

LETS’ CONSIDER;

1. Tax Planning: –Tax planning is a process of looking at various tax options and using the available fiscal incentives to determine when, whether, and how to conduct business and personal transactions so that taxes are eliminated or reduced.

GAAR MAY NOT APPLY.

2. Tax Avoidance: –

i) Legal utilization of the tax regime to one’s own advantage, in order to reduce the amount of tax that is payable by means that are within the law;

 ii) Involves the exploitation of loopholes and gaps in tax and other legislation in ways not anticipated by the law.

 GAAR SHALL APPLY TO UNACCEPTABLE TAX AVOIDANCE

3. Tax Evasion: –

i) Prohibited by law;

ii) It is a result of unlawful, illegal, willful suppression and misrepresentation of facts.

GAAR DOESN’T APPLY

LET’S CONSIDER SOME JUDGEMENTS

1. IRC Vs. Duke of Westminster(1936AC1) the “Lord Tomlin” it was held that ““Every man is entitled if he can to order his affairs so as that the tax attaching under the appropriate Acts is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the Commissioners of Inland Revenue or his fellow taxpayers may be of his ingenuity, he cannot be compelled to pay an increased tax”.

 2. IRC Vs. Fishers Executors ( 1926 AC 395)the Lord Sumner “My Lords the highest authorities have always recognised that the subject is entitled so to arrange his affairs as not to attract taxes imposed by the Crown so far as he can do so within the law, and that he may legitimately claim the advantage of any expressed term or of any emotions that he can find in his favour in taxing Acts. In so doing he neither comes under liability nor incurs blame”.

3. Supreme Court in UIO Vs. McDowell and Co. Ltd. (154 ITR 148): it was held that” Tax planning may be legitimate provided it is within the framework of law. Colorable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honorable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges””.

4. Supreme Court in UIO Vs. Azadi bachao Andolan (263 ITR 706): it was held that “In the absence of anti-abuse provision in the tax treaty, ‘treaty shopping’ is not illegal. Motives of setting up Mauritius residents (to take tax benefits) does not affect the legality of transactions.”

BASED ON JUDICIAL PRECEDENCE, TAX AVOIDANCE MAY BE MORAL AS A MATTER OF LAW BUT WHAT IS THE MORAL STATUS OF TAX AVOIDANCE ACCORDING TO THE BASIC PRINCIPLES OF ETHICS?

Through above definitions and Judicial Precedents, we know that Tax Avoidance is deliberate measures to avoid or reduce tax burden by an individual or a company.

There are two ANTI-ADOIDANCE RULES IN OUR COUNTRY;

1. SAAR-Specific Anti-Avoidance Rules- targeted to on individual on case by case basis through specific provisions under Income tax Act and Income Tax Rules.

2. GAAR-General Anti-Avoidance Rules

SAAR (Specific Anti- Avoidance Rules); Some Examples of SAAR GAAR (General Anti-Avoidance Rules); there are two types of GAAR
i) Transfer Pricing Regulations;

ii) Thin Capitalization Norms;

iii) Controlled Foreign Corporations;

iv) Deemed dividend;

v) Indirect transfer;

vi) Transfer of income without transfer of asset; etc.

i) Judicial GAAR: Principles that are not codified in legislation but are developed by the judicial precedents.

ii) Statute based GAAR: Statute based GARR is extended and codified version of Judicial GARR. It codifies and gives legal recognition to principles laid by Judicial GARR

GAAR IN INDIA:

1. On 16th-Mar-2012: Finance Minister, Pranab Mukherjee takes a tough decision & announces that the government will curb on tax avoidance effective from the fiscal year 2012-13.

2. On 7th–May-2012: Finance Minister, Pranab Mukherjee forced to change his opinion and agreed to defer GAAR by a year as his announcements spooked overseas investors.

3. On 28th-Jun- 2012: Finance Ministry releases the first draft on GAAR, there was the wide criticism of the provisions.

4. On 14th-Jul-2012: PM, Manmohan Singh, formed a review committee under Parthasarathy Shome, for preparing a second draft by 31st August and final guidelines by 30th September 2012.

5. On 1st-sept- 2012: Shome Committee recommends to defer GAAR by three years.

6. On 14th-Jan-2013: Govt. of India partially accepts the recommendations of Shome Committee and has decided to defer the same for 2 years and will now be effective from the year 2016-17.

7. On 27th-sept-2013, as per the notification issued by Govt. of India, GAAR would be valid for foreign institutional investors that have not taken the benefit of an agreement under Section 90 or Section 90A of the I-T Act or Double Taxation Avoidance Agreement (DTAA).

8. GAAR will not be applicable for the investments made by foreign investors prior to Aug-2010

9. GAAR provisions that will come into effect from 1stApril 2017 and

10. apply only to business arrangements with a tax benefit exceeding Rs3 crores.

 SOME RECOMMENDATIONS OF PARTHASARATHI SHOME PANEL:

1. Defer implementation of GAAR by 3 years.

2. The threshold of tax benefit is Rs.3 crores & additional with changes in 1962 Income Tax Rules.

3. Mauritius Issue- GAAR should not appeal to inspect the realness of the residency FII from Mauritius. The government should hold the provisions of the CBDT circular that was issued in the year 2000 on acceptance of TRC (Tax Residence Certificate) issued by Mauritius government.

4. The Approving panel is Five-member committee, two members must be non-government persons & of renown from the fields of Accountancy, Business or Economics.

5. The other two members must be chief commissioners of IT dept., chaired by a retired High court judge.

LET’S CONSIDER SOME EXAMPLES TO UNDERSTAND GAAR PROVISIONS;

EXAMPLE 1: A choice made by a company between leasing an asset and purchasing the same asset. The company would claim a deduction for leasing rentals rather than depreciation if it had their own asset. Would the lease rent payment be disallowed as an expense under GAAR?

INTERPRETATION: GAAR provisions, would not, prima facie, apply to a decision of leasing (as against purchase of an asset). However, if it is a case of circular leasing, i.e. the taxpayer leases out an asset and through various sub-leases, takes it back on lease, thus creating a tax benefit without any change in economic substance, Revenue would examine the matter for invoking GAAR provisions.

EXAMPLE 2:    Lets’ consider a company “A”, borrowed money from a company “B” and used that to buy shares in three 100% subsidiary companies of “A”. Though the fair market value of the shares was Rs. 20(say), “A” paid Rs. 120 for each share. The amount received by the said subsidiary companies was transferred back to another company connected to “B” (lender). The said shares were sold by “A‟ for    Rs. 4 each and a short-term capital loss was claimed and this was set-off against other long-term capital gains.

 INTERPRETATION: By the above arrangement, the taxpayer has obtained a tax benefit and created rights or obligations which are not ordinarily created between persons dealing at arm’s length. Revenue would invoke GAAR with regard to this arrangement.

PRINCIPLES BY JUDICIAL GAAR

SHAM DOCTRINE:  Applied by courts in cases where the substance of a transaction, as intended by the parties, is not correctly represented by the documentation, i.e. the rights and obligations apparently created differ from those actually intended by the parties.

SUBSTANCE OVER FORM Courts look into the economic or fiscal substance of a transaction, rather than the legal effects of a transaction, to determine the tax consequences of the transaction.

STEP TRANSACTION Transactions that are undertaken for no purpose other than to avoid tax, and involve a series of legally ineffective steps, are taxed on the basis of their ultimate result, thereby ignoring the intervening steps.

BUSINESS PURPOSE TEST Transactions are tested for a real business purpose, or any legitimate non-tax purpose, i.e. transactions largely motivated by the desire to minimize or avoid tax are ignored.

WHY GAAR WAS INTRODUCED: A JUSTIFICATION

i) Negate abusive tax avoidance arrangements that result in revenue loss;

ii) Codification of the principle of “Substance over form”;

iii) Enact appropriate provisions for examining cases of tax avoidance & planning;

iv) Plugging loopholes in law that result in tax avoidance;

v) Critical examination of inbound/outbound transaction and check treaty shopping;

vi) Deterrent against use of legal constructions to avoid tax; and

vii) Preserve the tax base of the country from erosion.

APPLICABILITY OF GAAR: [CHAPTER-XA]

SECTION 95 OF INCOME TAX ACT “APPLICABILITY OF GENERAL ANTI-AVOIDANCE RULE”

1. Section 95(1):Notwithstanding anything contained in the Act, an arrangement entered into by an assessee may be declared to be an impermissible avoidance arrangement and the consequence in relation to tax arising therefrom may be determined subject to the provisions of this Chapter X-A.

Analysis of Section 95

i. Section 95 is enabling section and it overrides the other provisions of income tax act;

ii. Impermissible avoidance arrangement is defined under section 96;

iii. Consequence of Impermissible avoidance arrangement is given under section 98.

2. Section 95(2): This Chapter X-A shall apply in respect of any assessment year beginning on or after the 1st day of April, 2018.

GAAR is applicable:

i. From Assessment Year 2018-19;

ii. To all transactions whether domestic or international;

iii. To both personal and corporate taxation.

3. The provisions of GAAR override the provisions of Double Taxation Avoidance Agreement (DTAA).

4. Application can be made to Authority of advance ruling for obtaining ruling whether proposed transaction fall under GAAR or not. Ruling obtained will be binding on applicant, transaction in relation to which ruling is obtained, and IT authorities.

Expalnation -For the removal of doubts, it is hereby declared that the provisions of this Chapter may be applied to any step in, or a part of, the arrangement as they are applicable to the arrangement.

SECTION 96 OF INCOME TAX ACT “IMPERMISSIBLE AVOIDANCE ARRANGEMENT”

Section 96(1): An impermissible avoidance arrangement means an arrangement, the main purpose of which is to obtain a tax benefit, and it-

(a) creates rights, or obligations, which are not ordinarily created between persons dealing at arm’s length;

(b) results, directly or indirectly, in the misuse, or abuse, of the provisions of this Act;

(c) lacks commercial substance or is deemed to lack commercial substance under section 97, in whole or in part; or

(d) is entered into, or carried out, by means, or in a manner, which are not ordinarily employed for bona fide purposes.

Analysis of Section 96:

If arrangement carried out by the tax payer is having its main purpose of Tax benefit (it is not necessary that purpose of whole arrangement is for tax benefit even if a step in, or a part of arrangement is for tax benefit) and any one of the condition out of (a) to (d) as given above is satisfied then such arrangement can be treated as IAA.

Section 96(2): An arrangement shall be presumed, unless it is proved to the contrary by the assessee, to have been entered into, or carried out, for the main purpose of obtaining a tax benefit, if the main purpose of a step in, or a part of, the arrangement is to obtain a tax benefit, notwithstanding the fact that the main purpose of the whole arrangement is not to obtain a tax benefit.

LET’S CONSIDER WHAT IS IMPERMISSIBLE AVOIDANCE ARRANGEMENTS

Impermissible Avoidance Arrangement. An impermissible avoidance arrangement is the one that attracts general anti-avoidance measures as per the GAAR provisions. Such arrangements are purposefully designed by the entities/persons to avoid a tax.

Impermissible avoidance arrangement means an “arrangement”, let us understand the meaning of arrangement, “Any step in, or a part or whole of, any transaction, operation, scheme, agreement or understanding, whether enforceable or not, and includes the alienation of any property in such transaction, operation, scheme, agreement or understanding.”

“Step includes a measure or an action, particularly one of a series taken in order to deal with or achieve a particular thing or object in the arrangement”.

The definition although exhaustive is very wide:

 a) It encompasses all types of arrangements, including genuine and legal arrangements, and whether enforceable or not;

 b) It covers not only a transaction or a scheme but also any step in or any part of such transaction;

 c) The definition of step is inclusive and hence, apart from the activities specified in the definition, any step as normally understood would constitute an arrangement.

LETS’CONSIDER TERMS USED ABOVE;

TRANSACTION: “The term ‘transaction’ is a word of wide import. In the Shorter Oxford Dictionary, the word ‘transaction’ is interpreted as ‘that which has been transacted; a piece of business, the action of passing or making over a thing from one person, thing or state to another”.

SCHEME: A ‘scheme’, according to the dictionary meaning of that word, is ‘a carefully arranged and systematic program of action’, a ‘systematic plan for attaining some object’, ‘a project’, ‘a system of correlated things’ (see Webster’s New World Dictionary, and Shorter Oxford English Dictionary, Vol. II).

AGREEMENT: Every promise and every set of promises forming the consideration for each other is an agreement [section 2(e) of Indian Contract Act, 1872]. There is mutual assent to the proposal when the proposal is accepted and in the result an agreement is formed.

OPERATION: “An act or instance, process, or manner of functioning or operating. A particular process or course; mental operations. A business transaction, esp. one of a speculative nature; deal: a shady operation.”

UNDERSTANDING; The word means something quite different from a binding legal contract; at most the word connotes a gentleman’s agreement.

GAAR IS TRIGGERED ONLY IF THERE IS AN IMPERMISSIBLE AVOIDANCE ARRANGEMENT(IAA)

There is an IAA, if following conditions are satisfied:

1. there is an arrangement as defined above and

2. the main purpose of the arrangement or any step in it, or a part of it is to obtain a tax benefit as defined in section 102(10) (‘tax benefit condition’ or ‘main purpose test’);

 2. And arrangement satisfied anyone of the following;

i) It creates rights which are not ordinarily created between persons dealing at arm’s length;

ii) It creates obligations which are not ordinarily created between persons dealing at arm’s length;

iii) It results, directly or indirectly, in the misuse or abuse of the provisions of the Act;

iv) It lacks commercial substance in whole or in part;

v) It is deemed to lack commercial substance in whole or in part within the meaning of section 97;

vi) It is entered into by means, or in a manner, which are not ordinarily employed for bonafide purposes;

vii) It is carried out by means, or in a manner, which are not ordinarily employed for bona fide purposes.

LET’S CONSIDER SOME EXAMPLE;

EXAMPLE 1:  Suppose a person invests in bonds issued by NHAI/REC for the purpose of obtaining capital gains exemption under section 54EC. In such a case, the main purpose could be to obtain a tax benefit; however, the investment does not result in any of the alternate conditions being satisfied and hence the investment cannot be construed as an IAA.

EXAMPLE 2:  Suppose a lawyer decides to render free services to a relative. In such case it could be argued that it created an obligation upon him which is not ordinarily created between a lawyer and a client and hence the alternate condition is satisfied. However, having regard to the relation between the two, it is quite plausible that the lawyer would not charge fees and that the main purpose was not to obtain a tax benefit. In the circumstances, the main purpose test is not satisfied and the transaction should not be declared as an IAA.

TAX BENEFIT: THERE COULD BE AN IAA ONLY IF THE MAIN PURPOSE IS TO OBTAIN TAX BENEFIT, WHICH TERM HAS BEEN DEFINED IN SECTION 102(10) TO INCLUDE: 

  • a reduction or avoidance or deferral of tax or other amount payable under the Act in the relevant previous year or any other previous year (‘any previous year’); or
  • an increase in a refund of tax or other amount under the Act in any previous year; or
  • a reduction or avoidance or deferral of tax or other amount that would be payable under the act, as a result of a tax treaty in any previous year; or
  • an increase in a refund of tax or other amount under this Act as a result of a tax treaty in any previous year; or
  • a reduction in total income; or
  • An increase in loss in the relevant previous year or any other previous year.

DEEMED TO LACK COMMERCIAL SUBSTANCE:

As per Section 97(1) an arrangement shall be deemed to lack commercial substance, if-

a. The substance or effect of the arrangement as a whole, is inconsistent with, or differs significantly from, the form of its individual steps or a part; or

b. It involves or includes-

* Round trip financing;

*An accommodating party;

*Elements that have effect of offsetting or cancelling each other; or

* 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

c. 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 (but for the provisions of this Chapter) for a party; or

d. it does not have a significant effect upon the business risks or net cash flows of any party to the arrangement apart from any effect attributable to the tax benefit that would be obtained (but for the provisions of this Chapter).

As per Section 97(2) for the purposes of section 97(1), round trip financing includes any arrangement in which, through a series of transactions-

*Funds are transferred among the parties to the arrangement; and

*Such transactions do not have any substantial commercial purpose other than obtaining the tax benefit (but for the provisions of this chapter),

Without having regard to-

* Whether or not the funds involved in the round-trip financing can be traced to any funds transferred to, or received by, any party in connection with the arrangement

*The time, or sequence, in which the funds involved in the round-trip financing are transferred or received; or

*The means by, or manner in, or mode through, which funds involved in the round-trip financing are transferred or received.

As per section 97(4) for the removal of doubts, it is hereby clarified that the following may be relevant but shall not be sufficient for determining whether an arrangement lacks commercial substance or not, namely: –

*The period or time for which the arrangement (including operations therein) exists;

*The fact of payment of taxes, directly or indirectly, under the arrangement;

*The fact that an exit route (including transfer of any activity or business or operations) is provided by the arrangement.

Analysis of Section 97: As per Section 97(1)(a) if substance of the arrangement is different from its form then such arrangement will be declared as IAA. For E.g. transaction is formed to be stated as sale & lease back transaction, but in substance it is only a make and believe story.

For Section 97(1)(b) read with Section 97(2) some examples of round-trip financing are:

Funds are transferred among parties – In case of group companies where some companies are profitable and some are loss making, then this group makes an arrangement where one profitable company will obtain loan from bank and subsequently will give interest free loan to another group company which is loss making. Interest paid by profitable company will be claimed as interest expenses for business purpose by such profitable company.

Transaction without substantial commercial purpose – company X one of the companies of group company, purchased shares from company Y (company in same group) at higher rate and sell it to another company Z (which is also in same group) at lower rate. Company Z sold those shares in market at higher rate. Main purpose of this arrangement was to provide loss to X and gain to Z. In this arrangement X suffered capital loss and Z realized capital gain. There was no commercial purpose for entering sales and purchases of shares between the group companies.

Whether or not fund involved in round trip financing is traceable. – X Ltd. the profitable company takes loan from bank even though it has sufficient fund available, X Ltd. use the bank loan amount for business and subsequently gives loan out of its available fund to Y Ltd. (sister concern) loss making company at lower/free rate of interest (it is irrelevant whether loan given by X Ltd. to Y Ltd. is out of available funds and bank loan is used in business which is traceable).

Time or sequence is not relevant for fund involved in round trip financing.

  • X Ltd. obtains loan from bank, keeps it for 6 months and then transfers the fund to sister concern.
  • X Ltd. gives loan to sister concern. Thereafter, after 3 months obtains loan from bank.

Mode of transfer is irrelevant for fund involved in round trip financing. – X Ltd. purchased land from Y Ltd. (sister concern) at stamp value (since stamp value was too less than fair value) and sold land in market at market value, and all this transaction was carried out through register deed. If AO declare this arrangement as IAA then assessee cannot contend that all transaction is done through registered deed and they are genuine.

For section 97(1)(b) example for accommodating party is: Company X is incorporated in Hong Kong which is having its 100% subsidiary company in India Y Ltd., X is having only investment in Y Ltd and no business is carried out by company X. Company Z of Netherlands had acquired 100% share of company X, this result in indirect sale of investment in Y Ltd to company Z. In this case accommodating party is company X, and if X was not there than Z would have purchased Y Ltd directly. (this example is similar to Vodafone case)

For section 97(1)(b) example of elements that have offsetting or cancelling each other is: Mr. X has a house. He gifts the house to wife of Mr. Y. and Mr. Y gifts the house to minor child of Mr. X.

For section 97(1)(b) example of disguises the source/ownership is: Mr. X who has income on which tax is not paid, deposit that income in bank of foreign country and routed back that income to India in form of foreign investment (by way of third person) in a company in which Mr. X has substantial interest this is called disguises the ownership.

For section 97(1)(c) – selecting location of asset/transaction for tax benefit: Selecting location of asset/transaction out of India or in Tax free zone so as to avoid Taxes.

For section 97(1)(d) – no effect on business risk or net cash flow: Unused asset is transferred but risk related to that asset is not transferred, only benefit of asset is transferred. Like asset is transfer but maintains, rent, rates, insurance and all other expenses related to asset is borne by the transfer or only and income generated from asset is received by transferee.

CONSEQUENCES OF IMPERMISSIBLE AVOIDANCE ARRANGEMENT:

As per section 98(1) If an arrangement is declared to be an impermissible avoidance arrangement, then, the consequences, in relation to tax, of the arrangement, including denial of tax benefit or a benefit under a tax treaty, shall be determined, in such manner as is deemed appropriate, in the circumstances of the case, including by way of but not limited to the following, namely:—

a. disregarding, combining or recharacterizing any step in, or a part or whole of, the impermissible avoidance arrangement;

b. treating the impermissible avoidance arrangement as if it had not been entered into or carried out;

c. disregarding any accommodating party or treating any accommodating party and any other party as one and the same person;

d. deeming persons who are connected persons in relation to each other to be one and the same person for the purposes of determining tax treatment of any amount;

e. reallocating amongst the parties to the arrangement – any accrual, or receipt, of a capital nature or revenue nature; or any expenditure, deduction, relief or rebate;

f. treating – i) the place of residence of any party to the arrangement; or ii) the situs of an asset or of a transaction, at a place other than the place of residence, location of the asset or location of the transaction as provided under the arrangement; or

g. considering or looking through any arrangement by disregarding any corporate structure.

As per Section 98(2) For the purposes of sub-section (1), – i) any equity may be treated as debt or vice versa; any accrual, or ii) receipt, of a capital nature may be treated as of revenue nature or vice versa; or iii) any expenditure, deduction, relief or rebate may be recharacterized.

NON-APPLICABILITY OF GAAR: As per rule 10U (1): GAAR is not applicable in following cases:

a. An arrangement where the tax benefit in the relevant AY arising, in aggregate, to all the parties to the arrangement does not exceed Rs. 3 Cr.

b. a Foreign Institutional Investor (FII);

i) who is an assessee under the Act;

 ii) who has not taken benefit of an agreement referred to in section 90 or section 90A as the case may be; and

iii) who has invested in listed securities, or unlisted securities, with the prior permission of the competent authority, in accordance with the Securities and Exchange Board of India (Foreign Institutional Investor) Regulations, 1995 and such other regulations as may be applicable, in relation to such investments;

c. Non-resident in relation to investment made by him by way of offshore derivative instruments or otherwise, directly or indirectly, in a FII;

d. Any income accruing or arising to, or deemed to accrue or arise to, or received or deemed to be received by, any person from transfer of investments made before the 1st day of April, 2017 by such person.

ANALYSIS OF RULE 10U (1)

i) If tax benefit for particular AY to all the parties is up to Rs. 3 Cr. then GAAR is not applicable.

ii) GAAR is not applicable to FII.

iii) GAAR is not applicable to NR for investment through FII.

iv) GAAR is not applicable to income from transfer of investment which was made before 1/04/2017, this is called grandfathering of investment made before 01/04/2017. It is to be noted that grandfathering is available only for investments and not for arrangements.

PROCEDURAL PROVISIONS:

Procedure for treating arrangement as IAA is given in section 144BA of Income Tax act, 1961.

1. AO MAKES REFERENCE TO COMMISSIONER OF INCOME TAX (CIT) OR PRINCIPAL CIT (PCIT):

At any stage of assessment or reassessment proceedings before AO, AO having regard to the material and evidence available, considers that it is necessary to declare an arrangement as IAA and to determine consequence of such an arrangement within the chapter X-A, then AO may make reference to CIT/PCIT. In short if AO during assessment/reassessment proceeding considers that section 95 is to be invoke and is having all material and evidence, then AO may make reference to CIT/PCIT.

2. HEARING BEFORE CIT/PCIT:

If CIT/PCIT is of opinion that the provisions of Chapter X-A are required to be invoked, then CIT/PCIT will issue a notice to the assessee, setting out the reasons and basis of such opinion, allowing assessee to submit objections, and giving opportunity of being heard. For filing objection or giving opportunity of being heard should not exceed 60 days.

If no objection is raised by assessee then CIT/PCIT as deems fit will declare arrangement as IAA.

If objection is raised by assessee then CIT/PCIT will after hearing assessee:

i) If CIT/PCIT is satisfied then arrangement will not be declared as IAA.

ii) If CIT/PCIT is not satisfied then CIT/PCIT will make reference to Approving panel.

3. HEARING BEFORE APPROVING PANEL

On receipt of reference Approving panel will issue such direction as it deems fit, opportunity of being heard will be given to assessee and AO. Before issue of any direction approving panel may: Direct CIT to make further inquiry and furnish report on such inquiry. Call for and examine such record as it deems fit. Require the assessee to furnish such document as it may so direct.

4. APPEAL TO INCOME TAX APPELLATE TRIBUNAL (ITAT)

If assessee is aggrieved due to the direction of approving panel then assessee can make an appeal to ITAT.

CONCLUSION:  The provisions of Chapter X-A of the Income Tax Act, 1961 relating to General Anti-Avoidance Rule will come into effect from 1st April, 2017. The CBDT through Circular No. 7 of 2017, clarified that it is internationally accepted that Specific Anti-Avoidance Rule (SAAR) may not address all situations of abuse and there is need GAAR in the domestic legislation. The provisions of GAAR and SAAR can coexist and are applicable, as may be necessary, in the facts and circumstances of the case. It is further clarified that if a case of avoidance is sufficiently addressed by LOB in the treaty, there shall not be an occasion to invoke GAAR.

DISCLAIMER: This article is based on the provisions of income tax act in force, at time of preparation of this article. Examples given in this article is as per the interpretation of the provision of income tax act, 1961 by the author, people may interpret this provision in any other manner also.

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